Menotti v. City of Seattle , 409 F.3d 1113 ( 2005 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR MENOTTI; THOMAS 
SELLMAN; TODD STEDL; DOUG
SKOVE,
Plaintiffs-Appellants,
v.
No. 02-35971
CITY OF SEATTLE; PAUL SCHELL,
Former Mayor of the City of  D.C. No.
Seattle; NORMAN STAMPER, Former CV-00-00372-BJR
Chief of Police of the City of
Seattle; SHARON STEVENS, a Seattle
Police Detective; RONALD SMITH, a
Seattle Police Officer,
Defendants-Appellees.

KENNETH HANKIN; JENNIFER 
HUDZIEC; STEPHANIE LANE; DENISE
COOPER; NICOLE PEARSON; on
behalf of themselves and all others
similarly situated;
No. 02-36027
Plaintiffs-Appellants,
v.  D.C. No.
CV-00-01672-BJR
CITY OF SEATTLE; PAUL SCHELL,
OPINION
Former Mayor of the City of
Seattle; NORMAN STAMPER, Former
Chief of Police of the City of
Seattle,
Defendants-Appellees.

5945
5946 MENOTTI v. CITY OF SEATTLE
Appeal from the United States District Court
for the Western District of Washington
Barbara J. Rothstein, District Judge, Presiding
Argued and Submitted February 6, 2004
Submission Vacated February 17, 2004
Resubmitted April 14, 2004
Seattle, Washington
Filed June 2, 2005
Before: Ronald M. Gould, Richard A. Paez, Circuit Judges,
and Roslyn O. Silver,* District Judge.
Opinion by Judge Gould;
Partial Concurrence and Partial Dissent by Judge Paez
*The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
5950 MENOTTI v. CITY OF SEATTLE
COUNSEL
James E. Lobsenz, Carney Badley Spellman, P.S., and Aaron
H. Caplan, American Civil Liberties Union of Washington,
Seattle, Washington, for appellants Victor Menotti, Thomas
Sellman, Todd Stedl, and Doug Skove.
Steve W. Berman, Hagens Berman LLP, Seattle, Washington,
Arthur H. Bryant, Trial Lawyers for Public Justice, Oakland,
California, and Michael E. Withey, Stritmatter Kessler Whe-
lan Withey Coluccio, Seattle, Washington, for appellants
Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise
Cooper, and Nicole Pearson.
Ted Buck, Stafford Frey Cooper, P.C., Seattle, Washington,
for the appellees.
MENOTTI v. CITY OF SEATTLE 5951
OPINION
GOULD, Circuit Judge:
In this case we search for the proper balance between, on
the one hand, the vibrant rights of free speech and assembly
in an open society and, on the other hand, the needs of a city
to maintain order and security. We consider the constitution-
ality of an emergency order prohibiting access to portions of
downtown Seattle, Washington, during the 1999 World Trade
Organization (WTO) conference. Appellants filed lawsuits in
the United States District Court for the Western District of
Washington seeking damages for the constitutional rights that
were alleged to be violated by the emergency order. Four of
the Appellants also filed individual claims in which they
alleged that their constitutional rights were infringed by Seat-
tle police officers in the course of the conference. We deter-
mine that the emergency order was a constitutional time,
place, and manner restriction on speech on its face, and we
affirm the judgment of the district court on that issue. But we
also determine that there are genuine issues of material fact
whether the emergency order was constitutional as applied to
certain Appellants, and we reverse and remand for trial on
that issue. As for the Appellants’ individual claims, we affirm
in part, reverse in part, and remand.
I
On October 2, 2000, Plaintiffs-Appellants Kenneth Hankin,
Jennifer Hudziec, Stephanie Lane, Denise Cooper, and Nicole
Pearson (the Hankin plaintiffs)1 filed suit against the City of
Seattle, then-Seattle Mayor Paul Schell, and then-Seattle
Police Chief Norman Stamper in the United States District
Court for the Western District of Washington, on behalf of a
class defined as:
1
Robert Hickey, Carroll Jackson, and Emily Maloney were also named
plaintiffs in the lawsuit, but they are not parties to this appeal.
5952 MENOTTI v. CITY OF SEATTLE
All persons who were arrested by the City of Seattle
and its police agents or its affiliated police agents on
December 1 and 2, 1999, pursuant to the defendants’
“no protest” policies and directives which were
eventually embodied by the City of Seattle’s Local
Proclamation of Civil Emergency Order Number 3
(and subsequent revisions) and who were subse-
quently not convicted of any crime. Included in this
class are all persons arrested pursuant to such poli-
cies both inside and outside the zone established by
Order Number 3.
The Hankin plaintiffs sought damages, alleging that defen-
dants violated their rights under the United States Constitu-
tion. The Hankin plaintiffs also requested declaratory relief
stating that the emergency order violated the United States
Constitution.
On March 7, 2000, Victor Menotti, Thomas Sellman, Todd
Stedl and Doug Skove (the Menotti plaintiffs) filed a lawsuit
against the City of Seattle, Schell, Stamper, and Officer
Michael Jennings and Detective Sharon Stevens of the Seattle
Police Department.2 The Menotti plaintiffs filed an amended
complaint on January 9, 2002, adding Seattle Police Depart-
ment Officer Ronald Smith as a defendant. The Menotti plain-
tiffs alleged that defendants violated their rights under the
First, Fourth, and Fourteenth Amendments to the United
States Constitution and sought damages. Menotti and Sellman
also alleged that defendants committed false arrest.
The district court consolidated the two cases for the pur-
pose of resolving legal issues common to all parties. On Octo-
ber 29, 2001, the district court granted the defendants’ motion
for partial summary judgment regarding the constitutionality
2
Andrew Russell, Lauren Holloway, and Ronald Matyjas were also
plaintiffs in the lawsuit, but they are not part of this appeal. Officer Jen-
nings is also not part of this appeal.
MENOTTI v. CITY OF SEATTLE 5953
of the emergency order, holding that as applied it was a con-
stitutional time, place, and manner restriction on speech. The
district court concluded that the emergency order: (1) was
content neutral in that it did not exclude speech based on con-
tent or viewpoint, (2) was narrowly tailored because it “cov-
ered only enough territory for the WTO delegates and the
President [of the United States] to move safely from their
hotels to the convention [center] and lasted only during the
conference,” (3) served a significant government interest of
maintaining order in an emergency situation, and (4) provided
ample alternatives for expression because protestors could
demonstrate just outside the boundaries of the restricted zone.
The district court denied the plaintiffs’ cross-motion for
summary judgment on the constitutionality of the emergency
order as applied. The district court also granted the City’s
motion for summary judgment on the Hankin plaintiffs’
claims under 42 U.S.C. § 1983 alleging a failure to train or
supervise officers, holding that the Hankin plaintiffs had not
presented any evidence supporting this contention.
On January 8, 2002, the district court denied the Hankin
plaintiffs’ motion for class certification. On August 29, 2002,
the district court granted summary judgment to all defendants
as to the Hankin plaintiffs’ remaining claims, based on the
district court’s ruling of the constitutionality of the emergency
order. The district court entered final judgment as to the
Hankin plaintiffs pursuant to Fed. R. Civ. P. 54(b) on Novem-
ber 5, 2002.
As for the lawsuit filed by the Menotti plaintiffs, the district
court on November 1, 2001, denied the Menotti plaintiffs’
motion for partial summary judgment based on the alleged
federal constitutional violations. On January 14, 2002, the dis-
trict court, based on its ruling that the emergency order was
constitutional, granted the defendants’ motion for summary
judgment as to Sellman’s claims. However, the district court
denied the defendants’ motion for summary judgment as to
5954 MENOTTI v. CITY OF SEATTLE
the claims of Skove and Stedl, finding that genuine issues of
material fact existed as to the circumstances of their arrests.
On January 14, 2002, the district court also granted defen-
dants’ motion to dismiss the Menotti plaintiffs’ claims against
Schell and Stamper in their individual capacities, holding that
the Menotti plaintiffs had not provided any evidence showing
that Schell or Stamper were personally involved in the seizure
or arrest of these plaintiffs.
On August 15, 2002, the district court granted Officer
Smith’s motion for summary judgment based on qualified
immunity as to Skove’s claims. The district court determined
that Smith was entitled to qualified immunity on Skove’s
Fourth Amendment claim because Smith had acted reason-
ably, and further that Smith was entitled to qualified immu-
nity on Skove’s First Amendment claim because no
constitutional violation had occurred. The district court denied
Skove’s cross-motion for summary judgment on the same
claims.
Finally, on October 1, 2002, the district court granted sum-
mary judgment to the City on Menotti and Stedl’s claims
under 42 U.S.C. § 1983, holding that there was probable
cause to arrest Menotti, and that Menotti and Stedl had sub-
mitted no evidence of a municipal policy or custom of ille-
gally seizing or searching handbags. The district court entered
final judgment as to the Menotti plaintiffs on October 1, 2002.
The Menotti plaintiffs filed a timely notice of appeal on
October 23, 2002. The Hankin plaintiffs filed a timely notice
of appeal on November 13, 2002. We have jurisdiction under
28 U.S.C. § 1291, and we affirm in part, reverse in part, and
remand.
II
In reviewing de novo the district court’s grant of summary
judgment, where the facts are disputed we view the evidence
MENOTTI v. CITY OF SEATTLE 5955
in the light most favorable to the non-moving party. United
States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir. 2003).
We determine whether there are any genuine issues of mate-
rial fact and whether the district court correctly applied the
relevant substantive law. We do not weigh the evidence or
determine the truth of disputed material facts, but determine
only whether there is a genuine issue for trial. Balint v. Car-
son City, 180 F.3d 1047, 1054 (9th Cir. 1999) (en banc).
The WTO is an international group comprised of member
nations that discuss trade issues and enter into trade agreements.3
In January 1999, the White House announced that the City of
Seattle, Washington (the City) had been selected as the loca-
tion for the first WTO conference to be held in the United
States. The conference was to take place from November 30,
1999 to December 3, 1999. Representatives from the 134
WTO-member nations,4 including the President of the United
States, were to convene in Seattle.
Those who opposed the WTO’s agenda and specific activi-
ties convened in Seattle well in advance of the opening of the
conference, and protest activity began taking place. Three
weeks before the opening of the conference, unknown indi-
viduals broke windows at a Gap clothing store in downtown
3
The WTO was established on January 1, 1995, during the Uruguay
Round negotiations held pursuant to the General Agreement on Tariffs and
Trade. According to its web site, the WTO “is the only global international
organization dealing with the rules of trade between nations. At its heart
are the WTO agreements, negotiated and signed by the bulk of the world’s
trading nations and ratified in their parliaments. The goal is to help pro-
ducers of goods and services, exporters, and importers conduct their busi-
ness.” What is the WTO?, at http://www.wto.org/english/thewto_e/
whatis_e/whatis_e.htm (last visited Oct. 7, 2004). The WTO’s objectives
have generated a vigorous opposition by those who believe that the WTO
“favor[s] trade expansion over all else.” Lynda Gorov, The Varied Foes
of WTO Unite in Seattle Protests, Boston Globe, Nov. 30, 1999, at A1.
4
As of the filing date of this Opinion, the WTO has 148 member
nations.
5956 MENOTTI v. CITY OF SEATTLE
Seattle and threw several “Molotov cocktails”5 into the build-
ing, causing substantial damage. The “anarchist”6 symbol was
spray-painted onto the walls of the Gap store and on the
adjoining sidewalk. Other protestors attempted to gain entry
into downtown Seattle offices of timber and forest product
companies. Protestors trespassed onto downtown Seattle’s
Old Navy store, and hung a huge protest banner on the face
of the storefront. On November 26, 1999, the day after
Thanksgiving, a group of fifty to sixty protestors entered a
parade without permission to protest the WTO.
Protest activity began to intensify on November 29, 1999,
one day ahead of the WTO conference. While most protestors
were peaceful, others were violent. The level of violence can-
not be considered de minimis and in some cases posed threats
to persons.7 Some protestors vandalized property by spray
5
A “Molotov cocktail” is an explosive device consisting of “a bottle,
gasoline, and a rag.” United States v. Simmons, 83 F.3d 686, 687 (4th Cir.
1996).
6
“The anarchist movement represents a range of groups, from organized
and primarily nonviolent groups like the Industrial Workers of the World
to loosely knit and more extremist splinter groups . . . .” Ruth Teichroeb,
Fringe Anarchists in Middle of Violent Demonstrations, Seattle Post-
Intelligencer, Dec. 1, 1999, at A15. The “anarchist” symbol consists of the
letter “A” in a circle, and the symbol “is one of the most familiar symbols
of anarchism and represents the slogan ‘Anarchy Is Order.’ ” Id.
7
The dissent, while acknowledging that violence occurred, argues that
our “account exaggerates its pervasiveness” because most protestors were
peaceful. Dissent at 6027. We of course explicitly recognize that “most
protestors were peaceful,” but this does not negate the harsh reality and
striking import of the widespread violence instigated by those protestors
who were not peaceful. Moreover, the description of the WTO riots that
follows is not just that of the majority. The whole world witnessed the
rampant violence and chaos in the streets of Seattle at the outset of the
WTO meeting. The dissent’s account misapprehends reality by minimiz-
ing the violence and its import. Any fair and objective review of the record
would lead to the conclusion that District Judge Barbara J. Rothstein’s
order granting summary judgment to the City correctly described an emer-
gency situation marked by pervasive vandalism, theft, arson, and assault
MENOTTI v. CITY OF SEATTLE 5957
painting buildings and breaking windows. Others pounded on
windows of downtown stores and threw rocks at police offi-
cers. Police formed a security perimeter around the Niketown
store in downtown Seattle because of protestors encouraging
a crowd to take over the store. Damage to property and risks
to individuals on this day were not insignificant, though lim-
ited in geographic area to a few blocks in the center of the
City, and protestors dispersed late into the evening.8
The WTO conference opened formally on November 30,
1999, and from law enforcement’s perspective, things got
worse. Police logs indicate that demonstrators gathered in the
downtown area as early as 5:45 a.m. At least some among the
protestors had violent intentions. On a videotape introduced
as part of the record, a masked protestor says, “50,000 people
that really care . . . . I’m hoping that we can come out here,
and get crazy and fucking up shit . . . , that every city in the
world knows that it can’t host the WTO conference and it bet-
ter give control of the city back to the people or that city’s
going to be torn to pieces.”
Those protestors who chose to use violence to disrupt the
WTO’s conference used an array of weapons, devices, and
tactics to obstruct the conference. The disruption of normal
that overwhelmed law enforcement resources. These acts of violence are
undisputed in the record before us. One may disagree on the legal implica-
tions of the violence under First Amendment doctrine, and doubtless we
and the dissent do so disagree. But to minimize the violence and threat to
the City, to visiting foreign dignitaries, and to Seattle’s citizens, as our dis-
senting colleague does, is wrong.
8
Appellants have not alleged a negligence cause of action against the
City for having advance notice of but failing to prevent the chaos that
stemmed from the violence that marred the WTO conference. However,
the pattern of protest propagating civil disorder and violence is relevant to
understanding the City’s interest in restoring and maintaining order to
allow the WTO conference to proceed securely. Our dissenting colleague
fails to give this interest adequate heed.
5958 MENOTTI v. CITY OF SEATTLE
city life was so extreme in some locations that it bordered on
chaos. Police officers in contemporaneous reports said that
they saw protestors carrying bottles filled with flammable liq-
uids, locking down intersections by forming human chains
from lightpost to lightpost, breaking windows at retail stores,9
overrunning and looting small retail stores, and jumping on
cars. By 8:00 a.m., protestors had cut off vehicular access to
the Paramount Theater and the Washington State Convention
& Trade Center, the primary meeting venues of the confer-
ence. After demonstrators were discovered inside meeting
venues, police requested and received a “lock down”10 of the
Washington State Convention & Trade Center and the Shera-
ton Hotel, where many WTO delegates were staying.11 Seattle
Police Department, The Seattle Police Department After
Action Report, World Trade Organization Ministerial Confer-
ence, Apr. 4, 2000, at 36-39 [hereinafter “WTO After Action
Report”].
Some protestors directed violence at law enforcement
authorities: Among the violent, there were protestors who
assaulted police officers with chemical irritants, and others
who vandalized police cars. Some violent protestors threw
metal spikes, cans, bottles, signs, empty gas canisters, and
pieces of concrete at officers, who were forced to wear riot
gear for protection. Other protestors deliberately disregarded
police lines and attempted to break through in violent con-
frontations with police. According to a report of the Seattle
City Council prepared after the WTO convention, “officers
9
Niketown, the site of protest on the prior day, again attracted the atten-
tion of violent protestors. Officers received reports that Niketown was
being ransacked by protestors, and the officers had to rescue employees
through a rear alley door.
10
A “lock down” of these facilities meant that no persons could enter or
exit.
11
The increased level of protection for delegates was necessary for their
security. It also was even more important because WTO meeting venues
had been designated the equivalents of foreign embassies, mandating
heightened security protection.
MENOTTI v. CITY OF SEATTLE 5959
were put in perilous situations where, often cut off from com-
munication, they were expected to endure physical assaults
and taunts for long periods without food, rest, restrooms, or
water.” Seattle City Council, Report of the WTO Accountabil-
ity Review Committee, Sept. 14, 2000, at 5 [hereinafter “ARC
Report”]. Some officers were “violently barraged with ball
bearings (‘pachinko’ balls), rocks and bottles, [and] squirted
with urine.” Id. at 10 & n.14. One police officer on duty suf-
fered a heart attack, and a helicopter evacuation was required
because medical units could not break through the gathered
crowd to provide medical assistance.
Some officers did not take the passive resistance approach
in response to being targeted by violence, and mutual insecu-
rity among police and protestors caused the situation to spiral
out of control. In lieu of large-scale arrests, some officers
responded with tear gas and similar non-lethal weapons like
pepper gas, beanbag guns, and rubber bullets. Id. at 4. The
gravity of the situation caused some officers to resort to mea-
sures characterized later by the City Council as “out of pro-
portion to the threats faced,” provoking further disturbance
and resistance from violent protestors.12 Id. at 4, 11.
12
The dissent focuses on the Seattle Police Department for its response,
finding significance in the City Council’s remark that officers “likely
intensified the situation.” Dissent at 6028. The dissent’s characterization
is incorrect as a description of police conduct as a whole, and in any event
is irrelevant to the analysis of Order No. 3’s constitutionality. The City
Council’s ARC Report acknowledges that “police officers on the front
lines had no basis for confidence that the violence would stop with rocks
and bottles,” and the report “thankfully endorses the performance of those
officers who underwent unnecessary hardship and were the victims of
poor planning and leadership in the field.” ARC Report at 4, 10. Moreover,
whether Order No. 3 comports with the First Amendment does not turn on
who is to blame for the intensity of the situation that the City faced. See
discussion infra Part III. Whatever the complex of causes, the City was
faced with riots and disorder beyond its control that threatened the safety
of visiting foreign officials, prompting Order No. 3, and its permissibility
must be assessed in light of the crisis facing the City when it was adopted.
Finally, it is also likely that most of the time when police attempt to quiet
a violent disturbance the situation is intensified, which is a collateral con-
sequence of law enforcement’s response to violent protest.
5960 MENOTTI v. CITY OF SEATTLE
The general public was also at risk. Some violent protestors
started fires in the streets and in large dumpsters, and then
protestors prevented fire trucks from entering the area. A
driver of a garbage truck was pulled from his vehicle and
assaulted in the core downtown area. Once police were over-
whelmed, some uses of non-lethal weapons, such as chemical
irritants, failed to discern law-abiding demonstrators and
bystanders from the law-breakers they were intended to dis-
perse. Not only dignitaries from many nations worldwide with
interest in the WTO’s trade conference, but also, regrettably,
panic, confusion, and chaos were visiting Seattle.
Some protestors even directly interfered with WTO dele-
gates in an effort to disrupt the progress of the conference.
Some violent protestors held, pushed, or tackled WTO dele-
gates to prevent their entry into conference venues. Some
WTO delegates were forcibly prevented from leaving confer-
ence venues. Some violent protestors stopped one delegate’s
car and punctured its tires. Reflecting the extreme dangers to
delegates, protestors, and the public, at least one WTO dele-
gate drew a gun in response to the protestors’ attempts to
detain him, requiring immediate police intervention.
Some violent protestors were well-organized, and their
actions were coordinated. Some protestors gathered intelli-
gence about police operations during the protest by asking
officers questions about law enforcement tactics. Other prote-
stors listened in on squad briefings taking place on city
streets. Still others used cellular telephones and “walkie-
talkies” to coordinate protestors’ activities.13 By one account,
Seattle’s streets turned into “seeming war zones.” ARC Report
at 4. It is perplexing how our dissenting colleague can rely on
the City Council’s report, with its acknowledgment of the
“war zone” atmosphere in Seattle, and still urge the violence
13
On the previous day, a protestor on a bicycle rode ahead of a group
of protestors, communicating to the crowd via radio the locations of police
officers.
MENOTTI v. CITY OF SEATTLE 5961
was not pervasive; although the ARC Report suggests that
violent protestors were less than one percent of the total prote-
stors, this is not a small amount of violence given the activi-
ties in which the protestors engaged, and where there were
tens of thousands of protestors.
Despite the gravity of these problems, not all protest was
violent or disruptive. Much protest activity was ordered and
reasonable. Several marches involving primarily peaceful
protestors took place in the downtown area on November 30,
1999. These marches, comprised of concerned persons who
were not violent and who were not breaking the law, caused
the inflow of tens of thousands of persons into downtown
Seattle. The largest protest of the day, a march organized by
the AFL-CIO, was estimated by police to have involved
40,000 persons. Other protest marches involving significant
numbers of persons included a march of about 1000 members
of the Sierra Club, a march of 500 students from the Univer-
sity of Washington, and a march of 1000 protestors from the
Tibetan Rights Association. These marches by non-violent
protestors showed the substantial public sentiment opposing
the WTO or its activities. Protests such as these are the posi-
tive fruits of an open society, and encourage us to scrutinize
with care the constitutional issues raised by city and police
responses to the breakdown of civic order and security caused
by violent protestors seeking to disrupt the WTO conference.14
As noted by the Seattle Police Department’s WTO After
Action Report, these largely peaceful demonstrations took
place amid the chaos and disruption caused by the violent
14
The dissent’s characterization of the decision to enact Order No. 3 as
following the realization that the “crowd was simply larger than the police
had anticipated” again ignores the violence and riot that threatened the
WTO conference. It misapprehends the extent of disorder and insecurity
caused by the large crowd: The police “were not going to be able to bring
the situation under control without taking some sort of drastic action,” and
“the only recourse” they had was to “establish the police perimeter” to
“provide security for the delegates.” See Dissent at 6026.
5962 MENOTTI v. CITY OF SEATTLE
protestors. The report also specified that the combination of
heightened security measures required for WTO delegates and
the large number of protestors rendered police unable effec-
tively to make individual arrests of those protestors who were
breaking the law. The report stated:
This was a pattern that occurred throughout the con-
ference and presented significant tactical challenges
to police commanders. The protestors were estab-
lishing a fluid, dynamic method of operation that
consisted of rapid deployment and the use of non-
criminal protestors to buffer smaller pockets of
protestors engaging in significant criminal acts.
WTO After Action Report at 35. One Seattle police captain’s
report noted that officers “heard and saw numerous incidents
of property destruction, burglary, and looting; but we were
unable to leave our lines to take enforcement actions.”
At about 3:30 p.m. on November 30, 1999, then-Seattle
Mayor Paul Schell declared a civil emergency in the City of
Seattle, pursuant to Seattle Municipal Code Section 10.02.
The Mayor also imposed a general curfew. The governor of
the State of Washington then authorized the deployment of,
and called out, the National Guard.15
President Clinton arrived at the Westin Hotel in downtown
Seattle between 1:30 a.m. and 2:30 a.m. on December 1,
1999. A few hours after the President’s arrival, when protest
activity had temporarily subsided, Mayor Schell signed
“Local Proclamation of Civil Emergency Order Number 3”
(Order No. 3). Order No. 3 said, in pertinent part:
15
The dissent chastises the City for poor planning driven by political
and cost considerations. Dissent at 6029. This condemnation does not con-
trol whether Order No. 3 comports with the First Amendment. Our analy-
sis properly focuses on the City’s chosen means to restore order once lost
to violent protestors bent on preventing the WTO conference from pro-
ceeding. See discussion infra Part III.A.2.
MENOTTI v. CITY OF SEATTLE 5963
WHEREAS, the Mayor declared a civil emergency
exists in the City of Seattle (“the City”) in the Proc-
lamation Dated November 30, 1999; and
WHEREAS, after the issuance of the Proclamation
and despite the deployment of hundreds of law
enforcement officers, the City continued to experi-
ence civil disturbances resulting in injury to persons
and damage to property; and
WHEREAS, the level of city disturbances and dan-
ger to persons and property has been highest in those
areas in which there are protests in the vicinity of
World Trade Organization (“WTO”) meetings; and
WHEREAS, the City understands its obligations to
permit expressive activity pursuant to reasonable
time, place and manner restrictions necessitated by
the existing public safety concerns for WTO dele-
gates, dignitaries, citizens, public safety employees
and protestors; and
WHEREAS, the Chief of Police and other public
safety officials have determined that the safety of
WTO delegates, dignitaries, citizens, public safety
employees and protestors cannot be preserved with-
out reasonably limiting access to areas used by WTO
personnel; and
WHEREAS, it is imminently necessary to use
extraordinary measures to protect the public peace,
safety and welfare; and
WHEREAS, the civil emergency necessitates the uti-
lization of emergency powers granted to the Mayor
pursuant to Seattle Municipal Code, Chapter 10.02
and [Wash. Rev. Code] Chapter 38.52. Therefore
....
5964 MENOTTI v. CITY OF SEATTLE
A limited curfew is imposed in the portion of the
City within the following boundaries: Starting on the
corner of 4th Avenue and Lenora Street, then pro-
ceeding south on 4th Avenue to Seneca Street, then
east on Seneca Street to the I-5 freeway, then north
along the I-5 freeway to Boren Avenue, then north
on Boren Avenue to Pine Street, then west on Pine
Street to 6th Avenue, then north on 6th Avenue to
Lenora Street, then west on Lenora Street to, and
concluding at 4th Avenue and Lenora, as shown on
the attached map.
The effect of Order No. 3 was that all persons, subject to
limited exceptions, were prohibited from entering the portion
of downtown Seattle described in the order. The exceptions to
the prohibition on entering the restricted zone were granted
for: (1) delegates and personnel authorized by the WTO to
participate in official WTO functions; (2) employees and
owners of businesses within the restricted area and other per-
sonnel necessary to the operation of those businesses; and (3)
emergency and public safety personnel.16 Violations of Order
No. 3 were punishable by a fine of not more than $500 and/
or imprisonment of not more than 180 days. At all times, the
Washington State Convention & Trade Center and the Para-
mount Theater were within the restricted zone, as well as the
major hotels where WTO delegates were staying (i.e., the
Four Seasons Hotel, Cavanaughs, and the Sheraton Hotel).
The restricted zone skirted these venues, and in substance pro-
vided a protective perimeter.17
In the early morning hours of December 1, 1999, Seattle
Assistant Chief of Police Harv Ferguson issued an “Opera-
16
In an amendment to Order No. 3 issued later that day, additional
exemptions were granted for city staff and credentialed members of the
press.
17
We attach as Appendix A a diagram of the boundaries of the restricted
zone that was part of the record in this case.
MENOTTI v. CITY OF SEATTLE 5965
tions Order” to implement Order No. 3 and the restricted
zone. The Operations Order told officers that “[v]ehicles and/
or pedestrians . . . are authorized access inside the [restricted
zone] if they have a reasonable purpose for entering the
perimeter. A reasonable purpose includes work, shopping at
a specific location within the [restricted zone], or other like
type reasonable activity.” Thus, as it was interpreted, Order
No. 3 excluded all persons except delegates and personnel
authorized by the WTO for its official functions, employees
and owners of businesses within the restricted area, their cus-
tomers, other personnel necessary to the operation of those
businesses, and emergency and public safety personnel. Ini-
tially, Order No. 3 had not explicitly permitted shoppers to
enter, but it had allowed business owners and persons neces-
sary to run their businesses to enter, which implicitly sup-
ported the interpretation of the Operations Order.
At a press conference on the morning of December 1, 1999,
Assistant Seattle Police Chief Edward Joiner18 explained the
City’s adoption of Order No. 3:
We’re going to adopt a policy that’s pretty much in
line with what’s done in other cities around the
world when they have an event of this magnitude,
and that is, to take the core area where the [WTO]
conference is occurring . . . and prohibit any demon-
strations within that core area for the remainder of
the week.
Seattle Police Captain James Pugel testified in deposition19
that Assistant Chief Joiner had instructed him, in connection
18
Chief Stamper had delegated to Assistant Chief Joiner the task of
planning the Seattle Police Department’s response to the WTO confer-
ence.
19
The Menotti plaintiffs submitted Captain Pugel’s deposition testimony
in support of their motion for partial summary judgment and in opposition
to the City’s motion for partial summary judgment.
5966 MENOTTI v. CITY OF SEATTLE
with the implementation of Order No. 3 and the Operations
Order, “[n]o large protests. No people can come marching
through [the restricted zone]. There will be no marches.”
Chief Stamper testified in deposition20 that the effect of the
Operations Order was to exclude protestors from entering the
restricted zone:
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.
Order No. 3 and the accompanying Operations Order
decreased violence and protest within the restricted zone. But
it did not stop either violence or protest within the restricted
zone. Inside the restricted zone, protestors gathered in open
defiance of Order No. 3, and police made about 300 arrests.21
President Clinton addressed the WTO conference on
December 1, 1999, and departed the next morning. There was
no violence immediately incident to his presentation. On
20
The Menotti plaintiffs submitted Chief Stamper’s deposition testi-
mony in support of their motion for partial summary judgment and in
opposition to the City’s motion for partial summary judgment.
21
Even outside the restricted zone, there were some problems of vio-
lence incidental to protest. Some violent protestors caused property dam-
age, threw debris, blocked the street, and trapped people in their cars.
Some protestors jumped onto an officer’s patrol car and shook it by its
light bar, while others laid in front of the car and prevented the officer
from escaping. Some protestors took over the fuel pumps at a gas station
and attempted to fill small bottles with gasoline.
MENOTTI v. CITY OF SEATTLE 5967
December 2, 1999, Mayor Schell amended Order No. 3 by
reducing the size of the restricted zone. As modified, the
restricted zone was reduced to exclude the Westin Hotel
because President Clinton had since departed.22 Police logs
indicate that protest violence decreased on December 2, 1999,
and through the conclusion of the WTO conference on
December 3, 1999. Order No. 3 expired at 7:00 a.m. on the
morning of December 4, 1999.
In opposition to the City’s motion for summary judgment,
plaintiff-appellant Kenneth Hankin submitted a declaration
stating that he was arrested for violating Order No. 3 by tres-
passing inside the restricted zone with the purpose of protest.
Hankin testified via declaration that, on the morning of
December 1, 1999, he and others participated in a group pro-
test that began in Denny Park, north of downtown Seattle and
outside the restricted zone. As their group approached West-
lake Park, a downtown shopping plaza and public square
within the restricted zone, Seattle police surrounded them.
The group responded by sitting on the ground. Hankin testi-
fied that, without warning, Seattle police arrested the group of
protestors, and then turned to another portion of Westlake
Park, where Hankin was standing. Hankin and others beside
him were arrested.
Victor Menotti submitted his deposition testimony in sup-
port of his motion for partial summary judgment.23 Menotti
testified that he was a credentialed participant in the WTO
conference and that, on December 1, 1999, he was standing
22
We attach as Appendix B a diagram of the revised boundaries of the
restricted zone that was part of the record in this case.
23
We consider these depositions because they were part of the record
when the district court granted summary judgment to the defendants on
the Menotti plaintiffs’ claims. Fed. R. Civ. P. 56(c) (stating that summary
judgment should be granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law”).
5968 MENOTTI v. CITY OF SEATTLE
on a sidewalk talking with a small group about a WTO con-
ference meeting he had just attended. Without warning, police
charged the group surrounding Menotti. Menotti ran, believ-
ing that police were trying to disperse the crowd, but stopped
when he realized he was being pursued. Menotti was arrested
for pedestrian interference and obstructing an officer; how-
ever, the charges against Menotti were dismissed before a
probable cause hearing was held.
Thomas Sellman also introduced his deposition testimony
and that of Seattle Police Detective Sharon Stevens in support
of his motion for partial summary judgment. Sellman testified
that he was within the restricted zone on December 1, 1999,
distributing leaflets containing a cartoon criticizing the WTO.
Stevens testified that she and another officer witnessed Sell-
man distributing the flyers and asked Sellman what business
he had in the zone. When Stevens ascertained that Sellman
did not come within one of the exceptions to Order No. 3, Ste-
vens ordered him to leave the restricted zone. When Sellman
attempted to hand out another flyer, Stevens placed him under
arrest for failing to disperse. Sellman spent two nights in jail
and was released thereafter.
Todd Stedl presented deposition testimony in support of his
motion for partial summary judgment. Stedl testified that,
after hearing about Order No. 3 on December 1, 1999, he
decided to enter the restricted zone and distribute leaflets con-
taining the text of the First Amendment. While standing just
outside the zone, Stedl tried to hand a leaflet to an officer,
who reacted by grabbing the fliers and searching Stedl’s bag.
When Stedl complained that the officer could not seize his fli-
ers or search his bag without a warrant, the officer told him
to contact City Hall and to leave the restricted zone. Stedl
asked for the officer’s badge number, and the officer told
Stedl to leave. The officer later approached Stedl again and
told him to leave the area. Stedl told the officer that he
thought he already was outside the zone. The officer replied
that Stedl should get going. When Stedl asked how far, the
MENOTTI v. CITY OF SEATTLE 5969
officer told him fifteen blocks. Stedl testified that he was too
intimidated to return to the zone to pass out more leaflets, and
felt that if he had returned, he would be arrested. The officer
was never identified.
Doug Skove introduced his deposition testimony and video
evidence in support of his motion for partial summary judg-
ment. Skove testified that, on December 2, 1999, he decided
to go to Seattle after hearing about the restricted zone. He car-
ried a sign that read on one side, “Is the WTO in control of
Seattle too?” and on the other side “I have the right to protest
non-violently.” The video evidence shows that a police officer
(later identified as Seattle Police Officer Ronald Smith) saw
Skove carrying the sign as Skove walked into a crosswalk.
Smith said to Skove, “Hey, what did the Mayor tell you?
Other side of Fourth, other side of Seneca.”24 As Skove fin-
ished crossing the street, Smith approached, grabbed Skove’s
sign and pulled it away from his hands. Skove turned to his
right and continued walking across the street and away from
Smith, while Smith shouted “Come here, hey pal!” Skove
continued walking away. Smith said, “That’s alright, that’s
okay,” as Smith walked away, folded Skove’s sign, and threw
it away. After Skove had another encounter with police where
a second sign was seized, Skove was warned he would be
arrested if he continued protesting. Skove left the restricted
zone.
III
The Hankin and Menotti plaintiffs contend that Order No.
3 was an unconstitutional time, place, and manner restriction
on its face, and the Menotti plaintiffs also contend that Order
No. 3 unconstitutionally conferred unfettered police discretion
for its implementation. The Hankin plaintiffs also contend
that Order No. 3 was unconstitutional as applied to them
24
This was an instruction from Smith to Skove to exit the confines of
the restricted zone.
5970 MENOTTI v. CITY OF SEATTLE
because the City had adopted a policy of arresting only anti-
WTO protestors within the restricted zone.25
A
We first address the facial constitutionality of Order No. 3.
We have held that “[a]n ordinance is facially unconstitutional
if (1) it is unconstitutional in every conceivable application
because it is vague or impermissibly restricts a protected
activity or (2) it seeks to prohibit such a broad range of pro-
tected conduct that it is unconstitutionally overbroad.” Vlasak
v. Superior Court, 329 F.3d 683, 688 (9th Cir. 2003) (internal
quotation marks and citation omitted). The Supreme Court
has held that “particularly where conduct and not merely
speech is involved, we believe that the overbreadth of a stat-
ute must not only be real, but substantial as well, judged in
relation to the statute’s plainly legitimate sweep.” Broadrick
v. Oklahoma, 413 U.S. 601, 615 (1973). The Hankin plaintiffs
contend that Order No. 3 was facially unconstitutional
because it was overbroad. In evaluating this overbreadth chal-
lenge, we determine whether Order No. 3’s restrictions on
speech were content neutral, were narrowly tailored to serve
a significant governmental interest, and left open ample alter-
native means of communication. Vlasak, 329 F.3d at 689; see
also Frisby v. Shultz, 487 U.S. 474, 481 (1988).
1
[1] We address first whether Order No. 3 was content neu-
tral. “The principal inquiry in determining content neutrality,
in speech cases generally and in time, place, or manner cases
25
“A facial challenge alleges that any enforcement of the ordinance
creates an unacceptable risk of the suppression of ideas. An as-applied
challenge alleges that the restriction on speech is unconstitutional as
applied to the litigant’s particular speech activity, even though the law
may be capable of valid application to others.” Kuba v. 1-A Agric. Ass’n,
387 F.3d 850, 856 (9th Cir. 2004) (internal quotation marks and citation
omitted).
MENOTTI v. CITY OF SEATTLE 5971
in particular, is whether the government has adopted a regula-
tion of speech because of disagreement with the message it
conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989). The reason for this rule is to protect and preserve free
and unfettered speech for the ultimate good of society. We
have expressed this basic reason in varied ways, but it is unas-
sailable that the “fundamental principle” behind content anal-
ysis is that “government may not grant the use of a forum to
people whose views it finds acceptable, but deny use to those
wishing to express less favored or more controversial views.”
City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48-49
(1986) (internal quotation marks and citation omitted). In
assessing whether a restraint on speech is content neutral, we
do not make a searching inquiry of hidden motive; rather, we
look at the literal command of the restraint. Stated another
way, we agree with Justice Kennedy’s observation in City of
Los Angeles v. Alameda Books, Inc., that “whether a statute
is content neutral or content based is something that can be
determined on the face of it; if the statute describes speech by
content then it is content based.” 535 U.S. 425, 448 (2002)
(Kennedy, J., concurring). Our circuit has adopted this view.
Ctr. for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153,
1164 (9th Cir. 2003).
[2] Applying these principles here, we see Order No. 3 as
content neutral on its face. Even when we credit plaintiffs’
evidence and give plaintiffs all reasonable inferences, the text
of Order No. 3 is not in dispute, and it does not favor one con-
tent over another. The purpose of enacting Order No. 3 had
everything to do with the need to restore and maintain civic
order, and nothing to do with the content of Appellants’ mes-
sage. See United States v. Griefen, 200 F.3d 1256, 1260 (9th
Cir. 2000) (“[A] restriction on expressive activity is content-
neutral if it is justified, i.e., based on a non-pretextual reason
divorced from the content of the message attempted to be con-
veyed.”). As a matter of law, Order No. 3 was not a regulation
of speech content, but rather was “a regulation of the places
where some speech may occur.” See Hill v. Colorado, 530
5972 MENOTTI v. CITY OF SEATTLE
U.S. 703, 719 (2000). Under Order No. 3, persons could not
protest—in support of or against—any topic within the
restricted zone. Id. (holding that restrictions are not content
based where they “apply equally to all demonstrators, regard-
less of viewpoint, and the statutory language makes no refer-
ence to the content of the speech”) (internal quotation marks
and citation omitted). The restricted zone established by
Order No. 3 applied equally to persons of all viewpoints. That
Order No. 3 predominantly affected protestors with anti-WTO
views did not render it content based. See Madsen v. Women’s
Health Ctr., Inc., 512 U.S. 753, 763 (1994) (“[T]he fact that
the injunction covered people with a particular viewpoint does
not itself render the injunction content or viewpoint based.”).
Further, the City’s evidence in testimony of Mayor Schell,26
Police Chief Stamper,27 and Assistant Chief Joiner28 was that
the City did not implement Order No. 3 because of disagree-
ment with the message of anti-WTO protestors. Instead, the
motivating factor in the adoption of Order No. 3, as stated in
26
Schell testified in deposition that a “secure zone” was his “primary
objective” in enacting Order No. 3, and that the advice he received from
his staff was that a “secure zone” was necessary in order to assure the
safety of downtown residents and WTO delegates.
27
Stamper testified in deposition that a paramount goal was maintaining
security and avoiding violence. He testified, “I also need to emphasize that
we had a crucial intersection blocked completely denying access of emer-
gency vehicles and denying access to the WTO venue itself . . . . [T]hose
were formidable challenges bigger by far than anything, once again, that
I had seen in the six years I had been here . . . . [O]ur concern is the vio-
lence could erupt on either side, that a delegate, for example, angered at
being denied access could actually resort to violence, in this case, possibly
armed violence.”
28
Joiner testified in deposition that “the only recourse we had was to
establish the [restricted zone] where we could provide security for the del-
egates and so forth.” Joiner also testified that “[w]e would not have
allowed [peaceful protesters] to stay [within the restricted zone] under the
circumstances because we couldn’t - we could not be assured that the
demonstration would remain peaceful given the experience that we
already had.”
MENOTTI v. CITY OF SEATTLE 5973
its text, was the City’s observation that “the level of civil dis-
turbances and danger to persons and property ha[d] been
highest in those areas in which there [were] protests in the
vicinity of [WTO] meetings,” and the need to ensure the
safety of WTO delegates as well as downtown residents and
workers. The plaintiffs did not submit evidence controverting
the text of Order No. 3, which is not in dispute, or contradict-
ing the purposes recited by the Mayor and police chief.29
Appellants contend that Order No. 3 was content based
because it permitted exemptions for shoppers and downtown
workers to enter the restricted zone. We reject this argument
because these exemptions did not enable the City to discrimi-
nate against ideas it disfavored. See One World One Family
Now v. City and County of Honolulu, 76 F.3d 1009, 1012 n.5
(9th Cir. 1996) (“Because these exemptions don’t enable the
city to discriminate against ideas it disfavors, they don’t ren-
der the ordinance content-based.”). The exemptions permitted
shoppers and downtown workers to go about their business in
the restricted zone and did not enable the City to discriminate
against any persons on the basis of their views. Further, there
is no evidence that those persons who were permitted to enter
the restricted zone were part of the security problem that
prompted the adoption of Order No. 3. See Hill, 530 U.S. at
723 (“[A] statute that restricts certain categories of speech
only lends itself to invidious use if there is a significant num-
ber of communications, raising the same problem that the stat-
29
Appellants submitted the deposition testimony of Schell and Stamper
in an attempt to establish that the City’s purpose in adopting Order No. 3
was unlawful, in that the City implemented Order No. 3 with the purpose
of eliminating protestors from the downtown area. But this evidence is
consistent with the objective of Order No. 3 to eliminate all persons, with
limited exceptions, from the downtown area. Even if plaintiffs could
establish that the City had an illicit motive in adopting Order No. 3, that
would not be dispositive. The Supreme Court has held unequivocally that
it “will not strike down an otherwise constitutional statute on the basis of
an alleged illicit legislative motive.” United States v. O’Brien, 391 U.S.
367, 383 (1968).
5974 MENOTTI v. CITY OF SEATTLE
ute was enacted to solve, that fall outside the statute’s scope,
while others fall inside.”).
[3] We hold that Order No. 3 was content neutral, and pro-
ceed to address the other factors necessary for a reasonable
time, place, and manner restriction.30
2
[4] We next assess whether Order No. 3 was narrowly tai-
lored to serve a significant governmental interest. The
Supreme Court has held that “[a] statute is narrowly tailored
if it targets and eliminates no more than the exact source of
the ‘evil’ it seeks to remedy.” Frisby, 487 U.S. at 485. To be
narrowly tailored, a statute “need not be the least restrictive
means of furthering [the government’s] interests, but the
restriction may not burden substantially more speech than
necessary to further the interests.” United States v. Baugh,
187 F.3d 1037, 1043 (9th Cir. 1999). However, “the First
Amendment demands that municipalities provide ‘tangible
evidence’ that speech-restrictive regulations are ‘necessary’ to
advance the proffered interest in public safety.” Edwards v.
City of Coeur d’Alene, 262 F.3d 856, 863 (9th Cir. 2001). The
tailoring of the restraint must of course correspond to the pur-
poses it serves. Ward, 491 U.S. at 799 (holding that the nar-
rowly tailored requirement is satisfied “so long as the
[neutral] regulation promotes a substantial government inter-
est that would be achieved less effectively absent the regula-
30
We also hold that Order No. 3 was not “viewpoint-based” on its face.
Viewpoint discrimination occurs “when the government prohibits speech
by particular speakers, thereby suppressing a particular view about a sub-
ject.” Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir. 2001) (internal
quotation marks and citation omitted). Here, Order No. 3’s ban on protests
did not prohibit a particular viewpoint, and applied equally to persons who
wished to protest about any topic. As in Hill, Order No. 3 “applie[d]
equally to used car salesmen, animal rights activists, fundraisers, environ-
mentalists, and missionaries.” 530 U.S. at 723.
MENOTTI v. CITY OF SEATTLE 5975
tion”) (quoting United States v. Albertini, 472 U.S. 675, 689
(1985)).31
[5] Applying the rule of Ward and its standard here, we
return to the issue of whether Order No. 3 was narrowly tai-
lored to serve a significant government interest. No one could
seriously dispute that the government has a significant interest
in maintaining public order; indeed this is a core duty that the
government owes its citizens.32 The Supreme Court has
declared that “[i]t is a traditional exercise of the States’ police
powers to protect the health and safety of their citizens.” Hill,
530 U.S. at 715 (internal quotation marks and citation omit-
ted); see also Edwards, 262 F.3d at 863; One World One
Family Now, 76 F.3d at 1013. In the face of violent riot, the
City had a duty to restore order and to ensure the safety of
WTO delegates and the residents of Seattle.33 The City also
31
While the City was not required to choose the least restrictive alterna-
tive, an assessment of alternatives can still bear on the reasonableness of
the tailoring of Order No. 3 and whether it was “narrowly tailored” as
required. We have said that “if there are numerous and obvious less-
burdensome alternatives to the restriction on [protected] speech, that is
certainly a relevant consideration in determining whether the ‘fit’ between
ends and means is reasonable.” City of Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 417 n.13 (1993); Edwards, 262 F.3d at 865.
32
The district court was not required to accept the conclusion of Appel-
lants’ declarant that the City’s only interest was to “transport the delegates
to the conference.” That was not an accurate summary of the record before
the district court. Nor in our analysis were we required to pretend as if the
movement of delegates was the City’s only interest in the face of riot. The
record before the district court showed widespread violence and the break-
down of civic order. On the undisputed facts before the district court, the
City’s interest in maintaining peace and order is fairly presented. The dis-
sent’s attempt to reduce the City’s interest to transporting delegates is
wrong. Our analysis properly focuses on the City’s interest when it
enacted Order No. 3: restoring order and providing security to the core
downtown area to protect the President, visiting world dignitaries, and the
general public, and to allow the WTO conference to proceed.
33
The dissent argues that our account of the breakdown in public order
“does not paint a clear picture of the situation confronting City officials”
5976 MENOTTI v. CITY OF SEATTLE
had an interest in seeing that the WTO delegates had the
opportunity to conduct their business at the chosen venue for
the conference; a city that failed to achieve this interest would
not soon have the chance to host another important interna-
tional meeting.34
The Appellants nonetheless contend that the safety net cast
because the protestors had left the core downtown area and the violence
had subsided when Order No. 3 was implemented. Dissent at 6027. But
there is no logical connection between an assessment of the violence that
occurred when WTO proceedings were ongoing and a temporary cessation
of violence after WTO proceedings had concluded for the day. Even a
fierce battle may experience a respite of calm, and the calm of an evening
can precede a storm in the morning. The City was well aware that some
protestors wanted to shut down the WTO conference by violent means and
that the WTO conference was to resume the following day, and so there
was a strong likelihood that more “organized violence of a serious nature
[was] about to occur.” See Collins v. Jordan, 110 F.3d at 1363, 1373
(1997).
In any event, the dissent’s claim, based on a single “sweep of the
streets” at 8:00 p.m., that the streets of Seattle were “calm and under con-
trol” during the evening of November 30, Dissent at 6027, ignores the
undisputed evidence. By 9:00 p.m., officers were in danger of being
assaulted and injured by some aggressive protestors who held the advan-
tage of Capitol Hill’s higher ground. Ongoing skirmishes continued until
3:30 a.m., with officers fending off “rocks, bottles, golf balls, and . . .
incendiary devices.” WTO After Action Report at 42. Moreover, violent
protestors had established a pattern of converging, protesting, and then
dispersing only to reassemble later at another location. Id. at 35. Given the
violent protestors’ aim to shut down the WTO conference and their pattern
of conduct, a realistic depiction of events in the record is that the violence
had “temporarily subsided” during the evening of November 30, not that
the violence had “ended,” as the dissent maintains. Even crediting Appel-
lants’ evidence and giving all reasonable inferences to the Appellants, as
we must under the summary judgment standard, the record does not permit
a rational conclusion that the City should have thought the violence
“ended.”
34
This interest is embraced within the City’s asserted interest in restor-
ing order and maintaining security, which are necessary for public safety,
effective commerce, and the vitality of the City.
MENOTTI v. CITY OF SEATTLE 5977
by the City was too broad, and that it restricted protest unduly
in too large of an area, and thus wasn’t narrowly tailored.35
We turn to these contentions.
[6] Here, the City had a tough problem. Violent protestors
were damaging the City and jeopardizing the progress of the
WTO conference. Yet violent protestors were breaking the
law amidst throngs of lawful protestors. In this setting, per
evidence that is not materially in dispute, large numbers of
non-violent protestors prevented police from curbing effec-
tively the activities of the violent protestors.36 Police reports
said that “[t]he protestors were establishing a fluid, dynamic
method of operation that consisted of rapid deployment and
the use of non-criminal protestors to buffer smaller pockets of
protestors engaging in significant criminal acts.” WTO After
Action Report at 35. The violent protestors damaged the City
and disrupted the WTO conference, but they were able to
elude capture due to the tens of thousands of non-violent
protestors in the downtown area. The implementation of
Order No. 3 was necessary to permit police to restore and then
to maintain order and safety in downtown Seattle, for WTO
conference delegates and the public, and to allow officers to
execute their law enforcement duties by arresting those break-
ing the law.37
35
The Menotti plaintiffs and the Hankin plaintiffs argue that Order No.
3 was not narrowly tailored because the restricted zone was too large, and
because the restricted zone banned protected forms of speech. In addition,
the Hankin plaintiffs argue that the City should have “expend[ed] the
effort necessary to ensure clear passage for the delegates to and from the
[WTO conference] venues without infringing unnecessarily on protestors’
rights.”
36
We are concerned here with the effect that the large number of peace-
ful protestors had on the ability of police to quell the significant criminal
acts of the violent protestors. The impeding or “buffer” effect of peaceful
protestors is undisputed on the record.
37
The Hankin plaintiffs contend that “[t]here was no attempt to preserve
lawful protest and arrest only those who broke the law, just an attempt to
ban all protest.” But the record does not support that argument. The
5978 MENOTTI v. CITY OF SEATTLE
Citing the Supreme Court’s decision in Madsen, as well as
our decisions in Baugh and Bay Area Peace Navy v. United
States, 914 F.2d 1224 (9th Cir. 1990), Appellants contend that
there are cases invalidating restricted protest zones that were
smaller in scope than the restricted zone implemented by
Order No. 3. This argument misapprehends the case law and
ignores the factual circumstances of this case. None of these
cases establish a per se rule on the boundaries that a city may
draw in creating a restricted zone during protest activities.
Further, none of these cases dealt with the factual circum-
stances presented here: a small but dedicated group of violent
protestors who inflicted disruption and destruction on city
streets and threatened the safety of world leaders, while
obscured and sheltered by about 50,000 peaceful protestors,
all within a concentrated portion of a metropolitan downtown
area. We decline Appellants’ invitation to interpret the above
cases as defining conclusively the appropriate scope of “nar-
row tailoring” in the context of establishing a buffer zone on
protest activity.38
restricted zone created by Order No. 3 was implemented only after a full
day of protests on November 30, 1999. Before the implementation of
Order No. 3, protestors had been allowed in the downtown area, resulting
in the City’s police force being overwhelmed, as well as significant dam-
age and disruption to the downtown area. If the Hankin plaintiffs contend
that there was no attempt to preserve lawful protest on December 1, 1999,
then that too is belied by the record. Protestors were allowed access to
streets immediately adjacent to the delegates’ hotels and conference sites.
There was not a total bar to protest, and the scope of the restrictions must
be tested under the legal standards identified above for time, place, and
manner restrictions on speech.
38
The Menotti plaintiffs also argue that Order No. 3 did not further a
significant governmental interest because it permitted entry into the
restricted zone of persons not engaged in protest. We disagree. There is
no evidence that those permitted in the restricted zone were part of the
problem addressed by Order No. 3. Persons who lived, worked, or had
other business in the restricted zone could go about their business without
impeding the City’s ability to maintain a secure environment in the
restricted zone. Though Order No. 3 contained exemptions that allowed
certain persons to enter the zone, it still furthered a significant governmen-
tal interest by excluding from the zone the protest activity that was a
security threat to the downtown area.
MENOTTI v. CITY OF SEATTLE 5979
Appellants’ contention that the large size of the restricted
zone rendered it constitutionally impermissible ignores signif-
icant considerations that confronted City officials. As seen
from the diagram of the restricted zone, the various hotels and
meeting venues of the WTO conference were spread out
across several blocks of downtown Seattle. The size of the
restricted zone cannot sensibly be evaluated without consider-
ing the size of the area in which delegates were housed and
had to move freely in order to do the work of the WTO con-
ference. To achieve the goal of providing secure protection
for WTO delegates and ensuring safe transit for delegates
between venues and hotels, the City crafted the restricted zone
as being bounded by the outermost venues of the conference
and the hotels where delegates were staying.39 As the district
court saw it, “the [restricted] zone covered only enough terri-
tory for the WTO delegates and the President to move safely
from their hotels to the [WTO] convention and lasted only
during the conference.”40 We conclude the district court’s
analysis of this issue was sound and in accord with law.
39
Appellants make much of a declaration submitted by a former law
enforcement official, who contended that Seattle police should have used
pedestrian tunnels and dedicated roadways to facilitate the movement of
WTO delegates. Yet, these contentions do not address the fact that the tun-
nels in question did not connect all of the hotels and venues being used
by WTO delegates. The suggestions in the declaration provide no practical
way to stop the behavior of violent protestors in the downtown Seattle area
on November 30, 1999. Moreover, Appellants’ alternatives were not a fea-
sible means for the City to balance its interest in hosting the WTO confer-
ence with reliable safety for delegates, and the demonstrators’ interest in
expressive activity. See Kuba, 387 F.3d at 862 n.12 (recognizing that sug-
gested alternatives that are “far less restrictive and more precise means of
regulating the time, place, and manner of speech” is just the first step in
a “narrow tailoring” analysis, and that a court must also consider “whether
the alternatives both are feasible and allow substantially more speech”).
Even crediting Appellants’ declarations and giving all reasonable infer-
ences to Appellants, we cannot say that the alternatives were a feasible
means to respond to the prevalent violence that gravely threatened the
security of the WTO conference and the peace and order of the City.
40
That Order No. 3 protected a “particular method” of getting WTO
delegates to the conference does not mean, as the dissent argues, that this
is the only “interest Order No. 3 actually served.” See Dissent at 6041 n.7.
As we have explained, Order No. 3 brought order and security to the core
downtown area, providing safety for delegates and allowing the WTO
conference to proceed as scheduled. See discussion supra at 5975-77.
5980 MENOTTI v. CITY OF SEATTLE
We also reject Appellants’ contention that the size of the
restricted zone enforced by Order No. 3 was an overreaction
that needlessly restricted the rights of peaceful protestors. In
the context of a massive demonstration with tens of thousands
of participants, once a pattern of chaotic violence had been
established, it was unrealistic to expect police to be able to
distinguish, minute by minute, those protestors with benign
intentions and those with violent intentions. In this regard, the
Supreme Court’s decision in Hill v. Colorado, 530 U.S. 703
(2000), has particular application. In Hill, the Court upheld a
Colorado law that made it unlawful for any person within 100
feet of an abortion clinic knowingly to approach within eight
feet of another person without that person’s consent to pro-
vide materials or counseling. The Court reasoned:
[T]he [restricted zone’s] prophylactic aspect is justi-
fied by the great difficulty of protecting, say, a preg-
nant woman from physical harassment with legal
rules that focus exclusively on the individual impact
of each instance of behavior, demanding in each case
an accurate characterization (as harassing or not
harassing) of each individual movement within the
8-foot boundary. Such individualized characteriza-
tion of each individual movement is often difficult to
make accurately. A bright-line prophylactic rule may
be the best way to provide protection, and, at the
same time, by offering clear guidance and avoiding
subjectivity, to protect speech itself.
Id. at 729.
[7] Here, the size of the restricted zone was justified by the
difficulty of protecting world leaders in an environment in
which a small group of violent protestors were determined to
cause chaos and to disrupt the conference proceedings midst
tens of thousands of non-violent protestors.41 In different cir-
41
The dissent is wrong to characterize the City’s means as a “poor fit”
with the City’s interest based on the occurrence of violence outside the
MENOTTI v. CITY OF SEATTLE 5981
cumstances, it might be possible for law enforcement authori-
ties, on an individualized basis, to distinguish between
peaceful protestors and those with violent intentions. But in
these circumstances, after the broad antagonism to the WTO
restricted zone. It is not required for our legal analysis that the City’s mea-
sure to restore order where it was most needed had to maintain peace and
security perfectly in all areas outside the restricted zone. The dissent’s
argument that Order No. 3 was not narrowly tailored because it “did not
protect anyone outside of the perimeter,” Dissent at 6046, ignores or mini-
mizes the core interest addressed by Order No. 3: protecting the President
and foreign dignitaries who came to Seattle to conduct the business of the
WTO. The City needed to restore and maintain order in the core down-
town area to achieve this interest, and Order No. 3 “targets and eliminates
no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby, 487
U.S. at 485. We decline the dissent’s suggestion that a city’s means to
achieve its significant interest of restoring and maintaining security can
never be narrowly tailored absent a policy completely efficacious in elimi-
nating violence. See, e.g., Ward, 499 U.S. at 800 (“The validity of time,
place, or manner regulations does not turn on a judge’s agreement with the
responsible decisionmaker concerning the most appropriate method for
promoting significant government interests or the degree to which those
interests should be promoted.”) (emphasis added); see also City Council
v. Taxpayers for Vincent, 466 U.S. 789, 807-10 (1984) (upholding a ban
on posting signs on public streets to achieve the significant public interest
of “avoiding visual clutter” even though posted signs only “add some-
what” to the city’s visual clutter).
Similarly, the dissent’s argument that the restricted zone’s size “al-
lowed” violence to continue in areas outside the zone, Dissent at 6047, is
unsupported by and contrary to the record, which places some officers and
notes hundreds of arrests outside the zone. As the conference moved
toward completion, and the situation calmed, police were able “to escort
and monitor non-permitted demonstrations outside the perimeter in a man-
ner consistent with permitted demonstrations.” WTO After Action Report
at 45. Moreover, the district court correctly found that the City reasonably
concluded in Order No. 3 that “the level of city disturbances and danger
to persons and property [was] highest in those areas in which there are
protests in the vicinity of World Trade Organization (“WTO”) meetings.”
Contrary to the dissent’s assertion, the perimeter did more than protect
WTO delegates; Order No. 3 brought safety and security to the downtown
area, protecting businesses, their employees, and the City’s citizens as
well.
5982 MENOTTI v. CITY OF SEATTLE
had ripened into pervasive illegal and violent disruptive
actions, it would not have been practical to require police, on
a continuing basis, to make an accurate determination of each
protestor as violent or not violent. Appellants also argue that
police should have had more extensive staffing on the street
so that they could permit protestors to enter anywhere and
simply arrest and remove those who violated the law.42 But
we should hesitate to say that the law requires such a solution
in an emergency situation like that here where law-breaking
and law-abiding protestors were often indistinguishable, and
where those abiding the law might have interfered indirectly
with enforcement against violent protestors.
Appellants contend that Collins v. Jordan, 110 F.3d 1363
(9th Cir. 1996), controls the outcome of this case. We dis-
agree. In Collins, the Mayor of San Francisco responded to
sporadic violent protests by directing police officers to “cause
the dispersal and prevent the continuation of any gatherings
of people anywhere in the City and County of San Francisco
whenever the peace officer on the scene has reason to believe
that the gathering endangers or is likely to endanger persons
or property.” Id. at 1367. We affirmed the district court’s
denial of qualified immunity to the officers, because “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 ban-
ning all demonstrations, peaceful and otherwise, on the imme-
diately following day (or for an indefinite period thereafter).”43
42
The Menotti plaintiffs acknowledged that “the primary response of a
municipality to crime should be to arrest the criminals,” but faulted the
City for “fail[ing] to put enough officers on the streets on November 30th
to accomplish this task.” The Hankin plaintiffs also criticized the City’s
police department plan for law enforcement, arguing that “common police
tactics and planning would have provided a much more secure downtown
without sacrificing speech. For example, it is common police practice to
establish lines of defense around certain buildings before protestors arrive,
[and] to have squads specifically intended to pursue violent individuals
within crowds.”
43
Appellants contend that, since there was a decrease in violence in the
hours immediately prior to the imposition of Order No. 3, this statement
MENOTTI v. CITY OF SEATTLE 5983
Id. at 1372. However, we said in Collins that our holding was
narrow:
We need not address the question of whether at some
point—for example if there is widespread continuing
violence that appears to be beyond the ability of the
police to control—a time-limited ban on all demon-
strations might be lawful. Similarly, we need not
decide whether, and under what circumstances, spe-
cific, reliable information that organized violence of
a serious nature is about to occur might justify a
determination that a clear and present danger exists
warranting the banning of a particular demonstra-
tion.
means that here the City acted unlawfully in adopting Order No. 3. We
disagree.
In Collins, we described the “limited violence and disorder” that had
taken place as involving “a few injuries to people, none of them extensive
or life-threatening. The principal incidents involved property damage and
appear to have been confined to an area of about four blocks . . . . [M]ost
of the city was free from any form of unlawful conduct.” 110 F.3d at
1372. Here, the violence that had taken place was substantially more
severe, involving assaults on police and WTO delegates, fires, medical
emergencies, evacuation of retail stores, and a general loss of civic order.
Moreover, Collins invalidated an order that banned all demonstrations
throughout the whole county. In Seattle, however, protestors could still
demonstrate in all City areas outside the restricted zone.
Collins does not hold that, when a city is confronted with violent, dan-
gerous protests of the type in this case, it must wait for further violence
to occur before taking measures to restore civic order. Despite the dis-
sent’s characterization of Collins as involving “a similar emergency order
adopted under analogous circumstances,” Dissent at 6043-44, we face a
factually and legally distinguishable case, and the weight the dissent
places on Collins again shows the dissent’s minimization of the crisis in
Seattle. See also supra note 34 (recognizing that, on the undisputed facts,
the City had reason to believe and was entitled to believe that the violence
attendant to the WTO conference had not ended prior to Order No. 3’s
enactment, but had just temporarily subsided and would resume contem-
poraneous with WTO proceedings).
5984 MENOTTI v. CITY OF SEATTLE
Id. at 1373.
The scope of the violence that plagued Seattle on Novem-
ber 30, 1999, and the clear and present risks to world leaders
attending the WTO conference, render Collins inapposite. In
Collins, the violence that San Francisco faced before it
restricted protest was much less severe than Seattle faced in
this case. Further, San Francisco restricted speech throughout
the whole county,44 while Seattle merely restricted access
within a well-defined security zone to facilitate a public event.45
Mass demonstrations involving tens of thousands of partici-
pants are an important form of political protest and have a
great pedigree. Consider Martin Luther King, Jr.’s march on
Washington, at which he delivered the “I Have a Dream”
44
San Francisco County has a land area of 47 square miles. United
States Census Bureau, California Quick Facts, San Francisco County
(2000), available at http://quickfacts.census.gov/qfd/states/06/06075.html
(last revised Feb. 1, 2005).
45
The dissent argues that we have allowed the constitutional framework
“to be shaped” by our “characterization of the level of violence.” Dissent
at 6043 n.12. The dissent misunderstands our application of First Amend-
ment doctrine, which assesses the means the City used in light of the ends
the City needed to achieve. We have applied the correct legal framework
established by the Supreme Court. See, e.g., Ward, 491 U.S. at 799. Under
this precedent, understanding the City’s interest is essential to assessing
whether Order No. 3 was narrowly tailored to achieve that interest. See,
e.g., id. at 796-801. Collins also recognized that a heightened city interest
to end and prevent violence would require a different analysis:
Today, we decide only that the violence and disorder that
occurred in San Francisco on April 30 falls far short of the type
of occurrence that could have led any reasonable official to
believe that it would be constitutional to impose a city-wide ban
on all demonstrations, and that the law to that effect was clearly
established.
110 F.3d at 1373. In our view, Collins does not dictate a conclusion that
Order No. 3 is facially unconstitutional because Collins addressed a signif-
icantly broader restriction on speech enacted in response to a significantly
less dire situation.
MENOTTI v. CITY OF SEATTLE 5985
speech to a crowd of over 250,000 on the Washington Mall.
When a crowd is generally peaceful, large protests do not nec-
essarily create risks to public safety and security, even though
the crowd must be managed by a city. But once multiple
instances of violence erupt, with a breakdown in social order,
a city must act vigorously, and more extensively, to restore
order for all of its residents and visitors. Adding large num-
bers of police on the street might be the solution in some
cases, but in other cases could lead to more intense violence.
In light of the City’s significant governmental interest in
restoring and maintaining civic order to the core downtown
area, Order No. 3 and the restricted zone it implemented were
narrowly tailored.46
46
The dissent views Grossman v. City of Portland, 33 F.3d 1200 (9th
Cir. 1994), as presenting a “similar problem.” Dissent at 6045-46. The dis-
sent’s analogy to Grossman is off the mark, and reflects the dissent’s per-
vasive misapprehension of the scope of violence and disorder presented in
Seattle by the WTO protests. Grossman addressed the City of Portland’s
permitting scheme as applied to a “small, peaceful anti-nuclear protest,
involving six to eight people,” 33 F.3d at 1201-02, and is factually inappo-
site to this case which involved tens of thousands of protestors and hun-
dreds of violent and lawbreaking ones.
In addition to being factually inapposite, Grossman’s reasoning is not
persuasive in an analysis of whether Order No. 3 was a reasonable time,
place, and manner restriction. Portland’s permanent permitting scheme
made it unlawful “for any person to conduct or participate in any orga-
nized entertainment, demonstration, or public gathering, or to make any
address, in a park without . . . written permission.” Id. at 1204. Portland’s
stated interest was “protecting the safety and convenience of park users,”
and “maintaining normal quiet in the area adjacent to or near the park.”
Id. at 1205-06 & n.11. We held this scheme facially invalid in part because
the distinction between groups displaying messages and groups not dis-
playing messages was “absolutely empty in terms of the ordinance’s stated
goals.” Id. at 1206-07. But Grossman did not hold or suggest that such a
distinction is necessarily empty in all cases. Here, the record supports the
City’s distinction: The violence and disorder visiting downtown Seattle
during the four days of the WTO conference was incident to the presence
of protestors, not emergency personnel, business employees, or shoppers.
Grossman in no way controls, and is not persuasive on, the constitutional-
ity of a city’s necessary but temporary response to a breakdown of civic
order in an emergency setting. Grossman did not involve such a break-
down in order and is of no help in assessing the City of Seattle’s proper
response to a crisis that threatened the safety of Seattle’s visitors and citi-
zens.
5986 MENOTTI v. CITY OF SEATTLE
[8] While it is plausible that Order No. 3 was not the least
restrictive means of achieving the City’s goal, that is not what
Supreme Court precedent requires. There is no question that
the governmental interest here (security of the core downtown
area) would have been achieved less effectively absent Order
No. 3. Our role here is not to inject ourselves into the methods
of policing, and we do not do so here. Albertini, 472 U.S. at
689 (holding that the validity of a regulation “does not turn
on a judge’s agreement with the responsible decisionmaker
concerning the most appropriate method for promoting signif-
icant government interests”). We conclude that Order No. 3
was narrowly tailored to achieve a significant governmental
interest.47
3
[9] We must also assess whether Order No. 3 left ample
alternative channels of communication. We have observed
that “[t]he Supreme Court generally will not strike down a
governmental action for failure to leave open ample alterna-
tive channels of communication unless the government enact-
ment will foreclose an entire medium of public expression
47
The dissent incorrectly refers to our assessment of the City’s interest
as “confused and inconsistent” because we list the following: “protecting
the president and foreign dignitaries,” “maintaining public order,” “pro-
viding security to the core downtown area,” and “seeing that the WTO
delegates had the opportunity to conduct their business.” See Dissent at
6039-40 n.6. A rational evaluation of our discussion of the City’s interest,
however, yields a common thread: restoring and maintaining order to the
core downtown area so that the WTO conference could proceed safely and
securely.
Again, it is incorrect to urge that a city’s means of restoring order is not
narrowly tailored because the city has not fashioned a remedy aimed at
completely eliminating disorder across the entire city. See supra note 42.
For Order No. 3 to be narrowly tailored, Supreme Court precedent
requires only that it target and eliminate “no more [as opposed to no less]
than the exact source of the ‘evil’ it seeks to remedy.” Frisby, 487 U.S.
at 485. The City was entitled to seek a remedy in its core area where WTO
delegates resided and worked.
MENOTTI v. CITY OF SEATTLE 5987
across the landscape of a particular community or setting.”
Ctr. for Fair Pub. Policy, 336 F.3d at 1170 (quoting Colacur-
cio v. City of Kent, 163 F.3d 545, 555 (9th Cir. 1998)). A
time, place, and manner restriction does not violate the First
Amendment “simply because there is some imaginable alter-
native that might be less burdensome on speech.” Albertini,
472 U.S. at 689. “Of course, the First Amendment does not
guarantee the right to communicate one’s views at all times
and places or in any manner that may be desired.” Bay Area
Peace Navy, 914 F.2d at 1229 (quoting Heffron v. Int’l Soc’y
for Krishna Consciousness, Inc., 452 U.S.640, 647 (1981)).
However, an “alternative mode of communication may be
constitutionally inadequate if the speaker’s ‘ability to commu-
nicate effectively is threatened.’ ” Id. (quoting Taxpayers for
Vincent, 466 U.S. at 812).
[10] The application of these principles presents a very dif-
ficult question. On the one hand, the restricted zone carved
out a portion of the downtown area where protestors could not
deliver their message directly to delegates. On the other hand,
the protestors were able to demonstrate and express their
views immediately outside the restricted zone, including areas
directly across the street from the Washington State Conven-
tion & Trade Center and the Paramount Theater. The scope of
the restriction on protest extended only to the bounds of the
restricted zone, and did not apply generally to the City of
Seattle. The protestors could reasonably expect their protest to
be visible and audible to delegates, even if not as proximate
as the protestors might have liked.48
48
It cannot sensibly be argued that protesting outside the restricted zone
was not a viable alternative on the mistaken theory that the delegates were
not as accessible from that position. The Supreme Court has instructed that
the First Amendment does not require that individuals retain the most
effective means of communication, only that individuals retain the “ability
to communicate effectively.” Taxpayers for Vincent, 466 U.S. at 812; see
also Hill, 530 U.S. at 729 (upholding a law that prohibited individuals
from having a position that maximized accessibility to the target of their
speech).
5988 MENOTTI v. CITY OF SEATTLE
Given the protestors’ ability to communicate directly across
the street from most WTO venues, and given the violence that
Order No. 3 was aimed at preventing, we think the better
analysis favors the conclusion that Order No. 3 provided
ample alternatives for communication. See Hill, 530 U.S. at
729 (“Signs, pictures, and voice itself can cross an 8-foot gap
with ease.”). Appellants argue that they were prevented from
communicating with WTO delegates at close range, but there
is no authority suggesting that protestors have an absolute
right to protest at any time and at any place, or in any manner
of their choosing. Bl(a)ck Tea Soc’y v. City Of Boston, 378
F.3d 8, 14 (1st Cir. 2004) (“[A]lthough the opportunity to
interact directly with the body of delegates by, say, moving
among them and distributing literature, would doubtless have
facilitated the demonstrators’ ability to reach their intended
audience, there is no constitutional requirement that demon-
strators be granted that sort of particularized access.”).49
We do not minimize the value to society of facilitating pro-
test communications. Justice Brandeis in Whitney v. Califor-
nia gave us a classic statement on the values of free speech:
[The Founding Fathers] believed that freedom to
think as you will and to speak as you think are
means indispensable to the discovery and spread of
49
The district court also held that Order No. 3 provided ample alterna-
tive means for communication because protestors “had access to the media
and to the public beyond the zone.” The First Circuit recently expressed
a similar view in resolving a challenge to a demonstration zone established
by the City of Boston for the 2004 Democratic National Convention.
Bl(a)ck Tea Soc’y, 378 F.3d at 14. The First Circuit held that the demon-
stration zone provided ample alternative channels for communication
because “[a]t a high-profile event, such as the [Democratic National] Con-
vention, messages expressed beyond the first-hand sight and sound of the
delegates nonetheless have a propensity to reach the delegates through
television, radio, the press, the internet, and other outlets.” Id. Because we
hold that there is no constitutional requirement that protestors be allowed
to reach their designated audience in the precise manner of their choosing,
we do not evaluate this alternative argument.
MENOTTI v. CITY OF SEATTLE 5989
political truth; that without free speech and assembly
discussion would be futile; that with them, discus-
sion affords ordinarily adequate protection against
noxious doctrine; that the greatest menace to free-
dom is an inert people; that public discussion is a
political duty; and that this should be a fundamental
principle of the American government.
274 U.S. 357, 375 (1927) (Brandeis, J., concurring), over-
ruled by Brandenburg v. Ohio, 395 U.S. 444, 449 (1969).
Chief Justice Hughes reinforced these ideas a decade later in
De Jonge v. Oregon:
The greater the importance of safeguarding the com-
munity from incitements to the overthrow of our
institutions by force and violence, the more impera-
tive is the need to preserve inviolate the constitu-
tional rights of free speech, free press and free
assembly in order to maintain the opportunity for
free political discussion, to the end that government
may be responsive to the will of the people and that
changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the
very foundation of constitutional government.
299 U.S. 353, 365 (1937). The Supreme Court over decades
has never departed from this commitment to First Amendment
values.50
50
In Texas v. Johnson, 491 U.S. 397, 414 (1989), Justice Brennan wrote
for the Court, “[i]f there is a bedrock principle underlying the First
Amendment, it is that the Government may not prohibit the expression of
an idea simply because society finds the idea itself offensive or disagree-
able. Punishing desecration of the flag dilutes the very freedom that makes
this emblem so revered, and worth revering.” Justice O’Connor has also
remarked that “[t]he hallmark of the protection of free speech is to allow
‘free trade in ideas’—even ideas that the overwhelming majority of people
might find distasteful or discomforting.” Virginia v. Black, 538 U.S. 343,
358 (2003).
5990 MENOTTI v. CITY OF SEATTLE
Perhaps it has not been said with more elegance than in
these words of Justice Brennan in the landmark decision of
New York Times Co. v. Sullivan: “[D]ebate on public issues
should be uninhibited, robust, and wide-open, and . . . it may
well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials.” 376 U.S.
254, 270 (1964).51 However, we do not think that even the
most vital First Amendment expressions—and for purposes of
our analysis we consider political protest adverse to WTO
activities and internationalist philosophy to be political com-
ment at the core of the First Amendment—can be said auto-
matically to overcome the need of a city to maintain order and
security for its residents and visitors, in the face of violence.
Burson v. Freeman, 504 U.S. 191, 197 (1992) (“At the same
time, however, expressive activity, even in a quintessential
public forum, may interfere with other important activities for
which the property is used . . . . [T]he government may regu-
late the time, place, and manner of the expressive activity, so
long as such restrictions are content neutral, are narrowly tai-
lored to serve a significant governmental interest, and leave
open ample alternatives for communication.”).
[11] Accordingly, we apply the ample alternatives test with
a practical recognition of the dire facts confronting the City
in the early morning hours of December 1 during the WTO
conference.52 On the evening of the first day of the WTO con-
51
Though the singular importance of these First Amendment values
could hardly be overstated, it also must be kept in mind that the First
Amendment was held to be applicable against the States, and here a local
government, through the Fourteenth Amendment’s Due Process Clause.
De Jonge, 299 U.S. at 364; see also Palko v. Connecticut, 302 U.S. 319,
325 (1937), (incorporating the First Amendment’s protections into the
Fourteenth Amendment’s Due Process Clause on the view that the First
Amendment’s protections were “implicit in the concept of ordered liber-
ty”), overruled on other grounds by Benton v. Maryland, 395 U.S. 784,
794 (1969).
52
The dissent challenges our practical recognition of the emergency
confronting the City and our pragmatic application of the ample alterna-
MENOTTI v. CITY OF SEATTLE 5991
ference, and shortly before President Clinton was scheduled
to arrive, Seattle was tense, its streets were in disarray from
a long day of violent protest, and there was a general disrup-
tion of civic order. The “ample alternatives” cannot be taken
to mean that each protestor has the right to convey his or her
message in the manner preferred by that protestor—that
would be impossible where, as in this case, protestors num-
bered in the tens of thousands. The City was required to take
action to protect President Clinton and the delegates through-
out the three remaining days of the conference. If the City had
permitted chaos and violence to continue unabated, it would
not merely lose its standing as a host city for international
conferences, the City might also have sacrificed the safety of
the delegates and of its residents. The permissible communi-
cations available to protestors under Order No. 3 were sub-
stantial, not perfunctory. These available communications,
including protesting on the periphery of the restricted zone,
were perhaps not ideal for protestors who wanted to present
views in the face of delegates,53 but neither did they wholly
exclude protestors from the delegates’ purview.
tives test as lacking affirmative precedential sanction. See Dissent at 6052.
Our resolution of this issue is not contrary to established law and reflects
the principle that there is no constitutional right to deliver a confronta-
tional message of protest directly to an intended target. See Hill, 530 U.S.
at 716-18 (“[W]e have continued to maintain that ‘no one has a right to
press even ‘good’ ideas on an unwilling recipient. . . . While the freedom
to communicate is substantial, ‘the right of every person “to be let alone”
must be placed in the scales with the right of others to communicate.’ ”);
see also Bl(a)ck Tea Soc’y, 378 F.3d at 14 (“[A]lthough the opportunity
to interact directly with the body of delegates by, say, moving among them
and distributing literature, would doubtless have facilitated the demonstra-
tors’ ability to reach their intended audience, there is no constitutional
requirement that demonstrators be granted that sort of particularized
access.”).
The dissent’s unsupported assertion that Hill is inapposite because
WTO delegates were not “particularly vulnerable” and faced only “the
unpleasantness or inconvenience of a large demonstration,” see Dissent at
6039-40 n.6, understates the danger visiting delegates faced from violent
protestors determined to derail the WTO conference.
53
Some protestors may have preferred the restraints of Order No. 3 as
an aid to their own safety, as well as that of delegates. However, for pur-
5992 MENOTTI v. CITY OF SEATTLE
In the “ample alternatives” context, the Supreme Court has
made clear that the First Amendment requires only that the
government refrain from denying a “reasonable opportunity”
for communication. City of Renton, 475 U.S. at 54 (“[T]he
First Amendment requires only that Renton refrain from
effectively denying respondents a reasonable opportunity to
open and operate an adult theater within the city . . . .”). We
hold that, because Order No. 3 allowed protestors to demon-
strate directly across the street from the Washington State
Convention & Trade Center, the Paramount Theater, three out
of four major hotels where WTO delegates were staying, and
throughout the rest of downtown Seattle, Order No. 3 pro-
vided ample alternative channels of communication.54 We rec-
poses of assessing the constitutionality of Order No. 3, on the dueling
summary judgment motions, we may assume that protestors generally dis-
favored the restraint, and had views similar to those Appellants have
asserted.
54
The record is void of evidence supporting the dissent’s argument that
WTO delegates could see and hear protestors only within the 25-square
block restricted zone. See Dissent at 6050. Reason and precedent belie this
proposition. See Hill, 530 U.S. at 718 (holding that protestors had ample
alternatives to communicate their message even if they could not commu-
nicate with their intended audience where they preferred).
The dissent, most likely recognizing the lack of evidence to support its
argument, argues that “neither does the record reflect that the delegates
could see and hear protestors, or that the alternative means of communica-
tion available to the protestors were sufficient.” Dissent at 6050 n.16. But
contrary to the dissent’s assertion, the undisputed facts in the record show
that per the terms of Order No. 3 protestors could communicate their
views directly outside most of the hotels where delegates were staying.
See apps. A & B (showing that Order No. 3’s boundary bordered dele-
gates’ hotels); WTO After Action Report at 46 (recognizing that protestors
demonstrated at the front door of the Westin Hotel). The ability to so com-
municate is shown by appendices A and B. It is not disputed that major
venues for delegates, as identified on the appendices, included the Four
Seasons Olympic, Cavanaughs, the Sheraton, and the Westin hotels. Of
these, the Four Seasons Olympic, Cavanaughs, and the Westin were
located on the border of the restricted zone. Thus, the appendices show
without inference that Order No. 3 did not restrain protestors from making
MENOTTI v. CITY OF SEATTLE 5993
ognize that our decision takes into account a balance of the
competing considerations of expression and order. But we do
not think the Constitution requires otherwise.55
their views known on Fourth Avenue and on Sixth Avenue outside the
restricted zone across the street from three of the four identified major
venues for delegates situated in the restricted zone; only the Sheraton
Hotel is not on the restricted zone’s border. Consistent with Order No. 3
is the declaration of protestor Michael Gendler, submitted by the Appel-
lants, which confirms that protest was allowed on the east side of Fourth
Avenue. The appendices show that the east side of Fourth Avenue is adja-
cent to both Cavanaughs and the Four Seasons Olympic hotels. Order No.
3 on its face imposed no limitations on expressive activity outside the
restricted zone. See also WTO After Action Report at 45 (noting a “group
of about 1,000 people” that marched southbound on Fourth Avenue). We
draw no inferences in favor of our factual statement; rather, the dissent
ignores the undisputed facts that do not fit its legal theory.
Moreover, according to the undisputed declaration of Assistant Chief
Clark Kimerer, there were “several downtown hotels not within the buffer
zone housing WTO delegates which were excluded” because police
believed they could “provide adequate security.” It is also undisputed that
thousands of protestors did not abandon their demonstrations, but contin-
ued them throughout the rest of the downtown area for the duration of the
WTO conference. Id. at 43-46.
These alternative means of communication taken together are sufficient
as a matter of law under Supreme Court precedent because they gave a
reasonable opportunity for protestors to communicate. See City of Renton,
475 U.S. at 54.
55
We reject the City’s alternative contention that Order No. 3 was a per-
missible exercise of municipal control under a theory of an “emergency
exception.” Citing to out-of-circuit cases, the City argues that Order No.
3 was valid because it was taken in good faith and there was a factual
basis to decide that Order No. 3 was necessary to maintain order. See
Smith v. Avino, 91 F.3d 105, 109-10 (11th Cir. 1996), abrogated on other
grounds by Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998);
United States v. Chalk, 441 F.2d 1277, 1280 (4th Cir. 1971); Moorhead
v. Farrelly, 723 F. Supp. 1109, 1112-14 (D.V.I. 1989). These cases are
distinguishable, and the standard that they voice does not permit a suffi-
ciently nuanced review of the First Amendment rights at stake here. Smith
and Moorhead involved natural disasters that provided little or no warning
to municipalities. While Chalk involved civil unrest, it was the result of
5994 MENOTTI v. CITY OF SEATTLE
[12] We hold that Order No. 3 was a constitutional time,
place, and manner restriction on speech on its face.56 Because
an unpredictable clash between police and high school students, in con-
trast with this case, which involved a world trade conference planned
months in advance. Also, these courts employed the emergency analysis
in specific and limited contexts different from that here, the contexts of
natural disasters or of civil unrest confined in a smaller area, and in each
case the government’s tool was evening curfew. Our case involves politi-
cal protest coupled with chaos and violence, followed by a restricted zone
covering a large part of downtown Seattle, the core area including conven-
tion venues and delegates’ hotels, with the restriction applicable, day and
night, for the several remaining days of the conference. The legal analysis
justifying nighttime curfew in the “emergency” cases is not controlling
and does not permit adequate evaluation of the competing interests in the
face of the crisis that was presented. See also Oren Gross, Chaos and
Rules: Should Responses to Crises Always Be Constitutional?, 112 Yale
L.J. 1011, 1027-42 (2003) (outlining several problems with doctrines of
emergency powers). We decline to analyze Order No. 3 based on the
“emergency” doctrine, though as we have explained above, the nature of
the City’s interest in security and safety has been germane to our analysis
of the test for a reasonable time, place, and manner restriction.
56
At oral argument, the Hankin plaintiffs also contended that the City
should have reevaluated and reduced or eliminated the restricted zone on
December 2 or December 3, after the initial imposition of Order No. 3 on
December 1 had decreased the violence taking place in Seattle. We do not
consider this argument because it was not raised in the Hankin plaintiffs’
opening brief. Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir.
1988) (“It is well established in this Circuit that claims which are not
addressed in the appellant’s brief are deemed abandoned.”). Even if we
were to address this contention, the facts in this case justify the continued
imposition of the restricted zone. Although Order No. 3 had the effect of
decreasing violence in Seattle on December 1, there was undisputed evi-
dence that violence continued outside the restricted zone on December 2
and December 3, including an incident where protestors surrounded the
King County Jail (resulting in a lockdown of the jail). Given the events
that had taken place on November 30 and the ongoing violence from
December 1 to December 3, the City was justified in maintaining the
restricted zone to preserve order and security in the downtown area until
the WTO conference concluded. The restriction here lasted only four days.
Were we faced with such a restriction on public access over weeks or
months, a duty to reevaluate surely would arise at some point. But here,
the initial evaluation on December 1, in light of the limited duration of the
conference, is reasonably proximate to the duration of restraint.
MENOTTI v. CITY OF SEATTLE 5995
we hold that Order No. 3 was a valid time, place, and manner
restriction,57 we need not reach Appellants’ contention that
Order No. 3 was a prior restraint. Baugh, 187 F.3d at 1042
(“[E]ven prior restraints may be imposed if they amount to
reasonable time, place, and manner restrictions on speech.”).58
B
[13] Appellants contend that Order No. 3 (and Assistant
Chief Ferguson’s Operations Order) improperly gave unfet-
tered discretion to officers charged with enforcing the Order.
The Supreme Court has required that “a time, place, and man-
ner regulation contain adequate standards to guide the offi-
cial’s decision and render it subject to effective judicial
review.” Thomas v. Chicago Park Dist., 534 U.S. 316, 323
(2002). A regulation granting unfettered discretion to officials
charged with administering that regulation is impermissible
because it creates two dangers. First, such a regulation may
“intimidate[ ] parties into censoring their own speech, even if
57
We also note that the district court exercised supplemental jurisdiction
over Appellants’ claims under the Washington State Constitution, and dis-
missed those claims on summary judgment. Viewing these claims as a
facial challenge, we note that Washington interprets its free speech clause
in its Constitution in a manner parallel to the federal Constitution’s First
Amendment interpretation, except that Washington courts “diverge from
the Supreme Court on the state interest element of the time, place, and
manner test, as [the Washington courts] believe restrictions on speech can
be imposed consistent with [the Washington Constitution’s free speech
clause] only upon showing a compelling state interest.” Collier v. City of
Tacoma, 854 P.2d 1046, 1051 (Wash. 1993) (en banc). We hold that the
City’s interest in restoring and maintaining safety and security also was a
“compelling state interest” within the meaning of Washington law,
because “the purpose [is] a fundamental one and [Order No. 3] bear[s] a
reasonable relation to the achievement of the purpose.” See id. at 1054.
Thus, we affirm the district court’s summary judgment dismissal of
Appellants’ challenge to the validity of Order No. 3 under the Washington
State Constitution.
58
The First Circuit recently rejected a similar argument in Bl(a)ck Tea
Soc’y, 378 F.3d at 12.
5996 MENOTTI v. CITY OF SEATTLE
the discretion and power are never actually abused.” City of
Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757
(1988); see also Griefen, 200 F.3d at 1262. Second, unfettered
discretion may permit the administering officials “to roam
essentially at will, dispensing or withholding permission to
speak, assemble, picket, or parade according to their own
opinions regarding the potential effect of the activity in ques-
tion on the ‘welfare,’ ‘decency,’ or ‘morals’ of the communi-
ty.” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153
(1969); see also Griefen, 200 F.3d at 1262.
We addressed this issue in Griefen. There, the Forest Ser-
vice had issued a closure order excluding the public from
coming within 150 feet of a portion of the Nez Perce National
Forest that was closed for construction and repair. Griefen,
200 F.3d at 1258. The closure order had exempted persons
with a permit authorizing entry, law enforcement officials,
rescue workers, and employees of the construction company
doing work in the restricted zone. Id. Appellants challenged
the closure order contending, inter alia, that the Forest Ser-
vice had too much discretion in administering the closure
order. Id. at 1262. We rejected this contention, explaining that
“[i]f a closure of a public forum is for a valid rather than a
disguised impermissible purpose, the potential for self-
imposed or government censorship . . . does not exist.” Id. We
held:
In First Amendment terms, the fact that discretion to
authorize entry to a closed area may be unfettered
during construction is of no concern. The process of
granting authority to enter a lawfully closed zone
differs markedly from the process of licensing
expressive activity. Such a process does not “engen-
der identifiable risks to free expression . . . .”
Id. at 1263 (quoting City of Lakewood, 486 U.S. at 757).
MENOTTI v. CITY OF SEATTLE 5997
Griefen is instructive in evaluating how Order No. 3 was
implemented through the Operations Order.59 We have deter-
mined that, on its face, Order No. 3 was a lawful time, place,
and manner restriction on speech.60 Thus, portions of down-
town Seattle covered by Order No. 3 were lawfully closed
with limited exceptions for public safety officials, business
owners, managers, or employees, and their customers.
59
The dissent argues that Griefen is inapposite because “the area into
which the plaintiffs sought entry to protest had temporarily lost its status
of public forum.” Dissent at 6054 n.17. The dissent incorrectly reads Grie-
fen, taking the sentence it relies upon out of context. In Griefen we said
that “the immediate area of a construction zone is not an area that has the
attributes of a public forum.” 200 F.3d at 1261 (emphasis added). We also
held in Griefen that “[w]hen expressive conduct occurs on public grounds,
like a national forest, the government can impose reasonable time, place,
and manner restrictions,” id. at 1259-60 (emphasis added), and “[i]f a clo-
sure of a public forum is for a valid rather than a disguised purpose, the
potential for self-imposed or government censorship . . . does not exist.”
Id. at 1262 (emphasis added). Moreover, we had “no doubt” in Griefen
that “a government entity may close areas of public forests under con-
struction and repair,” just as we had “no doubt” that a city “could tempo-
rarily close for good reasons . . . a street engulfed in a riot or an unlawful
assembly.” Id. at 1263.
The closure order we addressed in Griefen closed part of the Nez Perce
National Forest, which doubtless is and was a public forum. In any event,
in Griefen we analyzed not only the reasonable time, place, and manner
issues, id. at 1259-62, but also the protestors’ unbridled discretion chal-
lenge on the premise that the order closed a public forum. Id. at 1262-65.
Similarly, our analysis in this case of the reasonable time, place, and man-
ner issues raised by the Appellants proceeds on the premise that Order No.
3 closed a public forum. See discussion supra Part III.A. Likewise, our
analysis of Appellants’ unbridled discretion challenge proceeds on the
premise that Order No. 3 resulted in “a closure of a public forum [ ] for
a valid rather than a disguised purpose.” See Griefen, 200 F.3d at 1259-60.
60
The dissent appeals to Board of Airport Commissioners v. Jews for
Jesus, 482 U.S. 569, 573 (1987), but that case is inapposite as it involved
a speech restriction held to be facially unconstitutional under the First
Amendment’s overbreadth doctrine. Moreover, Order No. 3 did not
receive a “virtually open-ended interpretation,” but rather contained
express limits on whom officers could exclude from the restricted zone,
such as WTO personnel, workers, and public safety officials.
5998 MENOTTI v. CITY OF SEATTLE
[14] That officers had discretion to permit persons with a
reasonable purpose to enter the restricted zone does not render
Order No. 3 constitutionally deficient.61 Order No. 3 facially
restrained officers from excluding certain persons specifically
authorized to enter the restricted zone, and the Operations
Order clarified the phrase “reasonable purpose” specifically to
include “work, shopping at a specific location . . . , or other
like type reasonable activity.” We have upheld a grant of offi-
cial discretion to interpret what is “reasonable” in restricting
speech to further a significant government interest. See S.
Oregon Barter Fair v. Jackson County, 372 F.3d 1128, 1139-
41 (9th Cir. 2004) (rejecting an unfettered discretion argu-
ment where the statute gave a governing body power to
“charge permit applicants a fee reasonably calculated to reim-
burse the county for its reasonable and necessary costs in
receiving, processing and reviewing applications for permits
to hold outdoor mass gatherings” (emphases added)). Should
a pattern of abuse result from an official’s exercise of discre-
tion, the proper remedy is not to “insist[ ] upon a degree of
rigidity that is found in few legal arrangements,” but rather is
to seek remedy through as-applied challenges. Chicago Park
Dist., 534 U.S. at 325; S. Oregon Barter Fair, 372 F.3d at
1139.
Persons intending to protest were limited in time, place,
and manner of their speech, but were not intimidated into cen-
soring their speech because all protest activity was prohibited
for a valid purpose in the restricted zone and speech was not
restrained immediately outside the restricted zone. Further,
61
The dissent intimates that any statute that gives an officer discretion
to administer speech restrictions is unconstitutional because it provides
“the opportunity for abuse.” See Dissent at 6054. Our dissenting colleague
overstates the reach of the First Amendment’s unbridled discretion doc-
trine. A literal “opportunity for abuse” may be present whenever an armed
officer of the law is given authority to enforce a speech restriction. We are
concerned instead with whether Order No. 3’s contained “adequate stan-
dards to guide the official’s decision and render it subject to effective judi-
cial review.” Chicago Park Dist., 534 U.S. at 323 (2002).
MENOTTI v. CITY OF SEATTLE 5999
there was no danger on the face of Order No. 3 that officers
enforcing the restricted zone could indiscriminately withhold
permission to speak. Order No. 3 prohibited protest on any
topic within the restricted zone. Order No. 3 and the supple-
mental Operations Order did not give officers administering
the Orders discretion to allow persons with “favored” views
inside the zone and to exclude those with “disfavored” views.
Regardless of topic or viewpoint, protestors were prohibited
from the restricted zone, as were others who did not fall
within the limited exceptions.
[15] Assistant Chief Joiner’s Operation Order gave officers
guidance (including specific examples) of which individuals
were permitted into the restricted zone.62 The Operations
Order said, “[v]ehicles and/or pedestrians . . . are authorized
access inside the perimeter if they have a reasonable purpose
for entering the perimeter. A reasonable purpose includes
work, shopping at a specific location within the perimeter, or
62
The Menotti plaintiffs contended at oral argument that, under Hague
v. Committee for Indus. Org., 307 U.S. 496 (1939), the fact that officers
had any discretion to admit persons into the restricted zone rendered Order
No. 3 and the Operations Order unconstitutional. We disagree. In Hague,
the ordinance allowed a city official to deny a permit for a public meeting
for any reason believed by the official to be “proper,” provided that the
denial was for the purpose of “preventing riots, disturbances, or disorderly
assemblage.” Id. at 502 n.1; see also Forsyth County v. Nationalist Move-
ment, 505 U.S. 123, 133 (1992) (holding that a county’s parade ordinance
granted excessive discretion to a county administrator as to the proper
amount to charge for a parade permit, where there were “no articulated
standards either in the ordinance or in the county’s established practice”
and the city administrator was “not required to rely on any objective fac-
tors” to determine the proper fee). These cases do not constitutionally pro-
hibit the grant of any discretion to city officials. Rather, the cases hold that
city officials must be guided by objective factors and standards when mak-
ing decisions pursuant to a city ordinance that restricts speech. Here, offi-
cers were instructed to grant entrance into the restricted zone to those
persons who had a “reasonable purpose” (defined to include “work, shop-
ping at a specific location within the perimeter, or other like type reason-
able activity”) to enter the zone. The Menotti plaintiffs’ argument on this
score is unpersuasive.
6000 MENOTTI v. CITY OF SEATTLE
other like type reasonable activity.”63 As in Chicago Park Dis-
trict, “[t]hese grounds [were] reasonably specific and objec-
tive, and [did] not leave the decision to the whim of the
administrator.” 534 U.S. at 324 (internal quotation marks and
citation omitted); see also S. Oregon Barter Fair, 372 F.3d at
1132; cf. Gaudiya Vaishnava Soc’y v. City and County of San
Francisco, 952 F.2d 1059, 1065-66 (9th Cir. 1991) (“The
ordinance [violates the First Amendment because it] provides
no specific grounds for granting or denying permits: no
explicit limits are placed on the Chief of Police’s discre-
tion.”). We hold that Order No. 3 and the Operations Order
did not provide unfettered discretion to officers who were
administering the restricted zone.
C
We next address the plaintiffs’ contention that Order No. 3
was unconstitutional “as applied.” “An as-applied challenge
alleges that the restriction on speech is unconstitutional as
applied to the litigant’s particular speech activity, even though
the law may be capable of valid application to others.” Kuba
v. 1-A Agric. Ass’n, No. 02-16989, slip op. 14635, 14645 (9th
Cir. Oct. 19, 2004) (internal quotation marks omitted) (quot-
ing Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.
1998)).64 The district court concluded that Order No. 3 as
63
The dissent argues that the Operations Order allowed “officers to
determine unilaterally what constitutes a ‘reasonable purpose,’ with no
further elaboration on what might be considered ‘other like type reason-
able activity’ ” Dissent at 6056. The dissent’s selective quotation ignores
the guidance provided by the enumeration of specific activities that consti-
tuted a “reasonable purpose,” such as working or shopping. That the Oper-
ations Order listed these commercial activities served to “guide the
official’s decision and render it subject to effective judicial review.” Chi-
cago Park Dist., 534 U.S. at 323.
64
In Kuba we addressed a facial and as-applied challenge to a state asso-
ciation’s policy that prohibited individuals from demonstrating at the asso-
ciation’s rodeo and circus, except in designated “free expression zones.”
Kuba, 387 F.3d at 853-55. We held the policy facially unconstitutional
MENOTTI v. CITY OF SEATTLE 6001
applied to the Hankin plaintiffs was a valid time, place, and
manner restriction. The Hankin plaintiffs contend that Order
No. 3 was unconstitutional as applied to them because the
City had adopted a policy of arresting only anti-WTO prote-
stors within the restricted zone.
because the association failed to prove how a handful of demonstrators
would cause congestion or a danger to safety, see id. at 859-60, and
because the association’s policy was not narrowly tailored when it penned
demonstrators in “three small, fairly peripheral areas” and did not “suffi-
ciently match” the interest of preventing congestion that could have been
achieved with equal effectiveness but less speech-restrictive alternatives,
see id. at 861-62. Kuba differs from the case before us because Kuba did
not involve significant prior violence such as had marred Seattle. The cor-
responding governmental interest in Kuba, in preventing congestion with
potential impact on safety, before the congestion occurred, was less than
Seattle’s interest in restoring order, after widespread violence, including
vandalism and riot.
MENOTTI v. CITY OF SEATTLE 6003
Volume 2 of 2
6004 MENOTTI v. CITY OF SEATTLE
Hankin submitted a declaration in opposition to the City’s
motion for summary judgment in which he testified that, on
December 1, 1999, he participated in a group march and pro-
test at Westlake Park within the restricted zone. Hankin testi-
fied that police surrounded the group and arrested them
without any warning, and without any determination as to
whether those persons were within the exemptions to Order
No. 3. Hankin testified that, immediately after arresting the
large group of protestors Seattle police then turned to another
portion of Westlake Park, where Hankin was standing, and
arrested him and others beside him without determining
whether these persons came within the exemptions to Order
No. 3. Accepting Hankin’s declaration testimony as true, as
we must for the purposes of reviewing the district court’s
grant of summary judgment to the City, Hankin’s testimony
is evidence that the arrest of this group of persons was a “dis-
MENOTTI v. CITY OF SEATTLE 6005
criminatory enforcement of a speech restriction amount[ing]
to viewpoint discrimination in violation of the First Amend-
ment.” Foti, 146 F.3d at 635; see also Police Dept. v. Mosley,
408 U.S. 92, 95 (1972) (invalidating, on Equal Protection
grounds, a disorderly conduct ordinance which barred picket-
ing within 150 feet of a school in session, but exempted
peaceful picketing of any school involved in a labor dispute,
because “the operative distinction is the message on a picket
sign”).
[16] The City may be held liable for such a violation only
if the arresting officers’ conduct was a product of City policy
or custom. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-
694 (1978). As we have explained: “Liability may attach to
a municipality only where the municipality itself causes the
constitutional violation through ‘execution of a government’s
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy.’ ” Ulrich v. City and County of San Francisco, 308
F.3d 968, 984 (9th Cir. 2002) (quoting Monell, 436 U.S. at
694). A municipal “policy” exists when “a deliberate choice
to follow a course of action is made from among various
alternatives by the official or officials responsible for estab-
lishing final policy with respect to the subject matter in ques-
tion.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483
(1986) (plurality opinion); Fairley v. Luman, 281 F.3d 913,
918 (9th Cir. 2002) (per curiam).
[17] There are three ways to show a policy or custom of a
municipality: (1) by showing “a longstanding practice or cus-
tom which constitutes the ‘standard operating procedure’ of
the local government entity;” (2) “by showing that the
decision-making official was, as a matter of state law, a final
policymaking authority whose edicts or acts may fairly be
said to represent official policy in the area of decision;” or (3)
“by showing that an official with final policymaking authority
either delegated that authority to, or ratified the decision of,
a subordinate.” Ulrich, 308 F.3d at 984-85 (internal quotation
6006 MENOTTI v. CITY OF SEATTLE
marks and citations omitted). We have held that a municipal
policy “may be inferred from widespread practices or evi-
dence of repeated constitutional violations for which the
errant municipal officers were not discharged or reprimand-
ed.” Nadell v. Las Vegas Metro. Police Dept., 268 F.3d 924,
929 (9th Cir. 2001) (internal quotation marks and citation
omitted).
Although Schell (as then-Mayor of the City) was the City’s
chief policymaker at the time Order No. 3 was implemented,
he testified in deposition that he had “relied on the [police]
officers to carry out [Order No. 3] and make sure we had a
secure zone for our — for the safety of our citizens and the
safety of the delegates.” Thus, Schell can be said to have “del-
egated that authority to . . . a subordinate,” in this case, Police
Chief Stamper. See Ulrich, 308 F.3d at 985. Chief Stamper,
in turn, delegated the responsibility of planning the City’s
response to the WTO protests to Assistant Chief Joiner.
Joiner, in explaining the City’s implementation of Order No.
3, said that: “We’re going . . . to take the core area where the
[WTO] conference is occurring . . . and prohibit any demon-
strations within that core area for the remainder of the week.”
In support of their contention that the City had adopted a
policy of suppressing anti-WTO speech in applying Order No.
3, the Hankin plaintiffs submitted declarations65 from persons
stating that police refused to allow them to enter the restricted
zone, even though they came within one of the exceptions to
Order No. 3, unless they removed anti-WTO buttons or stick-
ers.66 Martha Ehman testified in a declaration that on Decem-
65
These declarations were submitted in support of the Menotti plaintiffs’
motion for partial summary judgment, and in opposition to the City’s
motion for partial summary judgment.
66
Former-Police Chief Stamper also testified via declaration that “the
action of the officers [administering the restricted zone] when confronted
with that WTO slash through it . . . was, you know, take the symbol away,
put it in your backpack, or whatever the solution was to that particular
problem.”
MENOTTI v. CITY OF SEATTLE 6007
ber 1, 1999, officers enforcing the restricted zone permitted
her to enter after she said that she was going to work in the
restricted zone. She testified that, after being permitted to
enter, officers told her to stop and remove a piece of tape
from her backpack that had the words “NO WTO” on it, and
that officers told her she would be arrested if she did not com-
ply. Ehman removed the tape and was allowed to proceed.
Lauren Holloway testified in a declaration that, on December
1, 1999, officers enforcing the restricted zone forcibly
removed anti-WTO stickers from her clothing on the basis
that she was in the “No Protest Zone.” Ronald Matyjas testi-
fied that, on December 1, 1999, while walking to his office
located in the restricted zone, an officer told him that he could
not wear the “No WTO” sign that he had affixed to his jacket,
and that another officer tore off the sign without permission.
Andrew Russell testified that, on December 1, 1999, he was
refused entry into the restricted zone because he was wearing
a button that said “No WTO,” and only after removing the
button was he was allowed into the restricted zone. Rita Her-
kal testified that, on December 1, 1999, officers forcibly
removed anti-WTO stickers from her clothing, and that offi-
cers told her “You’re not allowed to wear stickers.”
[18] The statements of Assistant Chief Joiner and the
declarants, taken in the light most favorable to Appellants,
create a genuine issue of material fact as to whether it was the
policy of the City to apply Order No. 3 in a manner that
excluded only anti-WTO protestors. Viewing the evidence in
the light most favorable to the Hankin plaintiffs, such a policy
may be inferred due to the “widespread practices or evidence
of repeated constitutional violations” and the absence of evi-
dence that police officers were discharged or reprimanded for
making the discard of anti-WTO expressive materials an entry
ticket to the restricted zone. See Nadell, 268 F.3d at 929
(internal quotation marks and citation omitted). We reverse
the district court’s grant of summary judgment to the City on
the constitutionality of Order No. 3 as applied to the Hankin
plaintiffs, and we remand this issue for trial. Because we so
6008 MENOTTI v. CITY OF SEATTLE
hold, we reverse the district court’s order denying class certi-
fication and remand that issue to the district court for reconsider-
ation.67
However, we affirm the grant of summary judgment to
individual defendants Schell and Stamper regarding the
Hankin plaintiffs’ claims against them. “Supervisory liability
is imposed against a supervisory official in his individual
capacity for his own culpable action or inaction in the train-
ing, supervision, or control of his subordinates, for his acqui-
escence in the constitutional deprivations of which the
complaint is made, or for conduct that showed a reckless or
callous indifference to the rights of others.” Larez v. City of
Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal
punctuation, quotation marks, and citations omitted). Here,
Appellants have presented no evidence, other than the adop-
tion of Order No. 3 and the Operations Order, that either
Schell or Stamper personally took part in the alleged constitu-
tional violations or caused the constitutional violations
through their individual actions. We have already held Order
No. 3 to be facially constitutional, and without evidence that
67
As Order No. 3 was on its face a reasonable time, place, and manner
restriction, it follows that all persons who did not enter or who were
excluded from the restricted zone because of that order cannot assert a
valid claim individually or as a class member. However, any persons who
were excluded solely because of the content of their visible communica-
tions without regard to the exemptions within Order No. 3, or those such
as employees and shoppers, who came within Order No. 3’s exemptions,
but who were allowed to enter the restricted zone only after removing visi-
ble communications, such as buttons or stickers, hostile to the WTO, may
assert an as-applied First Amendment claim. Their ability to assert a claim
against the City, as contrasted with a claim against the specific officers
with whom they interacted, will depend on the factual determination
whether their claim is based on a policy of the City of Seattle, an issue on
which we have identified a genuine issue of material fact requiring trial.
As to any such claimants, we express no opinion whether the requirements
for class action certification may be satisfied, leaving that issue for initial
consideration in the district court after any due and appropriate proceed-
ings.
MENOTTI v. CITY OF SEATTLE 6009
Schell and Stamper personally played a role in the alleged
constitutional violations, either directly or by acquiescence or
culpable indifference, there is no basis for liability against
them in their individual capacities. The evidence presented by
the plaintiffs was not sufficient to establish or create a genu-
ine issue of material fact concerning the supervisory liability
of Schell or Stamper.
IV
A
We turn to the individual claims of the Menotti plaintiffs.
With regard to Menotti, the district court concluded that Seat-
tle police had probable cause to believe Menotti had commit-
ted the crime of pedestrian interference68 and obstructing a
police officer.69 The district court granted summary judgment
on Menotti’s Fourth Amendment claim and state law false
arrest claim. The district court also granted summary judg-
ment to the City on Menotti’s First Amendment claim, hold-
ing that Menotti had failed to present evidence that the
officers who arrested Menotti acted under a City policy.
Menotti appeals the district court’s grant of summary judg-
ment to the City and denial of his motion for summary judg-
ment on these issues.
68
Seattle Municipal Code section 12A.12.015 prohibits pedestrian inter-
ference. A person commits pedestrian interference where the person, inter
alia, “intentionally obstructs pedestrian or vehicular traffic.” To “obstruct
pedestrian or vehicular traffic” is defined as “to walk, stand, sit, lie, or
place an object in such a manner as to block passage by another person
or a vehicle, or to require another person or a driver of a vehicle to take
evasive action to avoid physical contact.” Seattle Mun. Code
§ 12A.12.015.
69
Seattle Municipal Code section 12A.16.010 prohibits obstructing a
public officer. A person obstructs a peace officer where the person, inter
alia, “[i]ntentionally and physically interferes with a public officer” or
“[i]ntentionally hinders or delays a public officer by disobeying an order
to stop given by such officer.” Seattle Mun. Code § 12A.16.010.
6010 MENOTTI v. CITY OF SEATTLE
We first address whether the police had probable cause for
Menotti’s arrest. “The test for probable cause is whether facts
and circumstances within the officers’ knowledge are suffi-
cient to warrant a prudent person, or one of reasonable cau-
tion, to believe, in the circumstances shown, that the suspect
has committed, is committing or is about to commit an
offense.” United States v. Puerta, 982 F.2d 1297, 1300 (9th
Cir. 1992) (internal punctuation, quotation marks, and citation
omitted). The question presented on Menotti’s Fourth Amend-
ment claim is whether a prudent person in the position of the
officers who arrested Menotti would have believed that
Menotti was committing the offenses of pedestrian interfer-
ence and obstructing an officer.
[19] Menotti submitted video evidence showing that just
before his arrest Menotti addressed a small group while
pedestrians unaffiliated with the group walked by unimpeded.
This evidence is contradicted by the deposition testimony of
Seattle Police Officer Christopher Myers, one of the officers
who arrested Menotti, who testified that he saw Menotti
“causing a group to block both vehicular and pedestrian traf-
fic.” We, of course, are not empowered to make factual deter-
minations when faced with conflicting evidence. In this
procedural context, where summary judgment was given to
the City, we must credit the video evidence submitted by
Menotti, and consider all evidence in the light most favorable
to Menotti. Menotti’s video evidence showed that neither he
nor the group he addressed interfered at all with pedestrians,
and a reasonable jury could find from this evidence, if the jury
failed to credit Officer Myers’s testimony, that the officers did
not have probable cause to arrest Menotti. A genuine issue of
material fact concerning whether pedestrians were impeded
by Menotti exists, and requires trial for resolution. See Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 247-57 (1986).
[20] We also hold that a genuine issue of material fact
exists as to whether police had probable cause to arrest
Menotti for obstructing an officer. Menotti testified in deposi-
MENOTTI v. CITY OF SEATTLE 6011
tion that when officers approached his group, the officers
issued no directives or warnings, and that he ran because the
officers wanted the group to disperse. Similarly, the video
evidence submitted by Menotti does not show any obvious
audible warnings by police immediately before Menotti’s
arrest. In contrast, Officer Myers testified in deposition that,
when officers approached Menotti’s group, they yelled “stop,
police,” and that Menotti started running immediately thereaf-
ter. Whatever may be decided by the trier of fact, at the sum-
mary judgment stage we must credit Menotti’s testimony and
conclude that a reasonable jury could determine that there was
not probable cause to arrest Menotti for obstructing an officer.
A genuine issue of material fact exists whether there was
probable cause to arrest Menotti for obstructing an officer,
and this issue also must be resolved by trial.
[21] We hold that the district court erred by granting sum-
mary judgment for the City on Menotti’s Fourth Amendment
claim. We reverse the district court’s grant of summary judg-
ment dismissing Menotti’s § 1983 claim under the Fourth
Amendment and his state law false arrest claim. We remand
these claims to the district court for further proceedings.
We turn to Menotti’s First Amendment claim. Menotti
alleged in his complaint that the City violated his First
Amendment rights when officers arrested him. The district
court granted summary judgment to the City, reasoning that
Menotti “failed to produce sufficiently probative evidence of
any City policy or custom that caused a deprivation of his
constitutional rights.” Based on our ruling above that there is
a genuine issue of material fact whether the City had a policy
during the WTO conference of suppressing anti-WTO views
of persons who might otherwise have qualified for entry into
the restricted zone, we reverse the district court’s judgment on
this issue and remand it to the district court for trial.
6012 MENOTTI v. CITY OF SEATTLE
B
Sellman was arrested for distributing leaflets within the
restricted zone, and the viability of his claims depends
entirely on the resolution of his constitutional challenge to
Order No. 3. Sellman presented no evidence that he was tar-
geted for arrest because of his anti-WTO views. Rather, the
undisputed testimony revealed that Sellman was arrested only
after Detective Stevens ascertained that Sellman had violated
Order No. 3 by being in the restricted zone when he did not
come within one of its exceptions, and further that Sellman
did not obey an order to disperse. We affirm the district
court’s grant of summary judgment in favor of defendants on
Sellman’s claims.70
C
Stedl testified in deposition that his bag was unlawfully
searched and his fliers unlawfully seized by an unidentified
officer. Stedl contended that the City was liable, based on 42
U.S.C. § 1983, for an unlawful search and seizure. The dis-
trict court granted summary judgment for the City on Stedl’s
claim, holding that Stedl had not presented evidence of a City
policy to commit unlawful seizures. As we have already
explained, to prevail on a theory of municipal liability, Stedl
must show that the unidentified officer acted pursuant to an
70
The parties dispute whether Sellman appeals the district court’s grant
of summary judgment to Officer Stevens, the officer who arrested Sell-
man. Sellman’s only reference to Officer Stevens in his opening brief was
a statement that “[s]ummary judgment should be entered in Sellman’s
favor, with remand to determine the damages caused by the City, Schell,
Stamper, and Stevens.” Because this contention was not supported by
argument in Sellman’s opening brief, we deem it waived. Humble v. Boe-
ing Co., 305 F.3d 1004, 1012 (9th Cir. 2002) (“Issues raised in a brief but
not supported by argument are deemed abandoned absent manifest injus-
tice.”); see also Fed. R. App. P. 28(a)(9)(A) (requiring that appellant’s
brief must contain “appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant
relies”).
MENOTTI v. CITY OF SEATTLE 6013
official policy or custom of the City. Monell, 436 U.S. at 691-
694; Ulrich, 308 F.3d at 984.
There was no evidence of any City policy authorizing the
search of backpacks or the seizure of fliers. Stedl argues that
such a policy may be inferred from an alleged pattern of such
practices by officers during the WTO conference, but he
offered deposition testimony of only two persons, himself and
one other protestor, who said that police had unlawfully
searched their bags. Even viewing the evidence in the light
most favorable to Stedl, he has not offered evidence proving
the first method of satisfying Monell’s policy requirement:
there was not evidence of a “longstanding practice or custom
which constitutes the ‘standard operating procedure’ of the
local government entity.” Ulrich, 308 F.3d at 984 (quoting
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).
Similarly, Stedl didn’t show “that [the unidentified officer]
was, as a matter of state law, a final policymaking authority
whose edicts or acts may fairly be said to represent official
policy in the area of decision.” Id. at 985 (internal quotation
marks omitted). Nor did Stedl’s evidence establish that “an
official with final policymaking authority either delegated that
authority to, or ratified the decision of, a subordinate.” Id. A
showing of constitutional wrong by a single police officer
may support a claim against that officer, but a claim against
a municipality may proceed only with evidence that the offi-
cer acted under the municipality’s policy or custom. Here,
Stedl did not show that the unidentified officer acted under an
official policy or custom of the City.
We affirm the district court’s summary judgment in favor
of the City on Stedl’s claims.
D
Skove brought First Amendment and Fourth Amendment
claims against Officer Smith for Smith’s seizure of Skove’s
6014 MENOTTI v. CITY OF SEATTLE
sign.71 The district court concluded that Smith was entitled to
qualified immunity on Skove’s Fourth Amendment claim
because Smith had probable cause to believe that Skove had
committed a crime (violating Order No. 3), and because the
seizure involved exigent circumstances. The district court also
granted summary judgment to Smith on Skove’s First Amend-
ment claim, holding that Smith’s actions were a valid time,
place, and manner restriction on speech. Skove appeals the
district court’s grant of summary judgment to Smith on both
claims.
We review the district court’s grant of qualified immunity
de novo. Elder v. Holloway, 510 U.S. 510, 516 (1994). Under
Saucier v. Katz, 533 U.S. 194 (2001), we take a two-step
approach in determining whether Smith is entitled to qualified
immunity. First, we determine whether Smith violated
Skove’s constitutional right. Id. at 200-01. If we answer in the
affirmative, we proceed to determine whether that right was
“clearly established” such that “it would be clear to a reason-
able officer that his conduct was unlawful in the situation he
confronted.” Id. at 201-02. If we determine at the first step
that there was no constitutional violation, that ends the quali-
fied immunity inquiry. Id.
We address Skove’s Fourth Amendment claim and con-
sider whether Smith violated Skove’s constitutional rights by
seizing Skove’s sign. Under the Fourth Amendment, the
“right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and sei-
zures, shall not be violated.” U.S. Const. amend. IV. The
Supreme Court has held that “in the ordinary case, seizures of
71
In his complaint, Skove alleged that Order No. 3 was unconstitutional
as applied to him, and that Officer Smith violated Skove’s First Amend-
ment and Fourth Amendment rights in seizing Skove’s sign. Skove did not
allege in his complaint that the City was liable under a theory of municipal
liability for an alleged Fourth Amendment violation stemming from
Smith’s seizure of his protest sign.
MENOTTI v. CITY OF SEATTLE 6015
personal property are unreasonable within the meaning of the
Fourth Amendment, without more, unless . . . accomplished
pursuant to a judicial warrant issued by a neutral and detached
magistrate after finding probable cause.” Illinois v. McArthur,
531 U.S. 326, 330 (2001) (internal quotation marks omitted).
However, when faced with “special law enforcement needs,”
the Supreme Court “has found that certain general, or individ-
ual, circumstances may render a warrantless search or seizure
reasonable.”72 Id.
[22] Smith contends that his seizure of Skove’s sign was
lawful because Smith had probable cause to arrest Skove for
being in the restricted zone and not within Order No. 3’s
exemptions. We agree that Smith had probable cause to arrest
Skove because, by engaging in protest inside the restricted
zone without evidence that he was exempt, Skove had vio-
lated Order No. 3. However, it is uncontested that Smith did
not arrest Skove. Had Skove been arrested, ample precedent
would permit a search or seizure “incident to arrest.” Knowles
v. Iowa, 525 U.S. 113, 116-17 (1998) (noting that the two his-
torical rationales for the search incident to arrest exception are
“(1) the need to disarm the suspect in order to take him into
custody, and (2) the need to preserve evidence for later use at
trial”). We decline to extend the doctrine of “search incident
72
Exceptions to the warrant requirement, for example, include adminis-
trative searches, Donovan v. Dewey, 452 U.S. 594, 598 (1981), searches
incident to arrest, see United States v. Edwards, 415 U.S. 800, 802-03
(1974), automobile checkpoint searches, see Mich. Dep’t of State Police
v. Sitz, 496 U.S. 444, 455 (1990), reasonable detention of suspects during
the execution of a search warrant, see Michigan v. Summers, 452 U.S. 692,
702-05 (1988), limited searches for weapons based on reasonable suspi-
cion, see Terry v. United States, 392 U.S. 1, 27 (1968), and exigent cir-
cumstances, see United States v. Place, 462 U.S. 696, 701 (1983). We
have defined exigent circumstances to include “those circumstances that
would cause a reasonable person to believe that entry . . . was necessary
to prevent physical harm to the officers or other persons, the destruction
of relevant evidence, the escape of the suspect, or some other consequence
improperly frustrating legitimate law enforcement efforts.” United States
v. McConnery, 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc).
6016 MENOTTI v. CITY OF SEATTLE
to arrest” to give protection for a warrantless search or seizure
when no arrest is made. It may be that Officer Smith declined
to arrest Skove because Skove walked away and Officer
Smith decided to maintain his post. Whatever Officer Smith’s
reason for not making the arrest, the seizure cannot be justi-
fied as incident to an arrest. Had an arrest been made, Smith
could argue the sign was seized as evidence, McArthur, 531
U.S. at 331-32, but without an arrest, we do not see how
Smith legitimately could be concerned about a need to pre-
serve evidence of a crime from being destroyed.73
[23] There is some merit to the argument that where there
is probable cause to arrest, evidence of the crime may be
seized and the seizure considered valid even if the arrest is not
completed. See Roaden v. Kentucky, 413 U.S. 496, 504 (1974)
(recognizing that “the probable cause for an arrest might jus-
tify the seizure of weapons, or other evidence or instruments
of a crime, without a warrant”). A supporting reason would be
that police in some settings might have to disregard compet-
ing duties to pursue and complete an arrest where, as here, a
suspect walks away. Yet, we reject this position because, if
police aims to arrest are so weak that they do not detain a sus-
pect, then it seems incongruous to say that a seizure of evi-
dence can be lawfully made without a warrant. We decline to
extend the exception to warrant requirements for seizures
incident to arrest to instances in which a police officer seizes
evidence of a crime, but makes no arrest.
Viewing the evidence in the light most favorable to Skove,
as we must in reviewing the district court’s grant of summary
judgment to Smith based on qualified immunity, when Smith
73
Smith argues that Skove voluntarily abandoned Skove’s interest in the
sign when he walked away from Smith after the seizure. This argument
misses the point. The sign was seized before Skove walked away. The
lawfulness of the seizure had to be shown based on evidence existing
before or at the time of the seizure. Skove’s departure after the sign’s sei-
zure is not material on this score.
MENOTTI v. CITY OF SEATTLE 6017
encountered Skove there was no exigency requiring seizure of
Skove’s sign without a warrant. When the encounter took
place on December 2, 1999, Seattle police had met with tens
of thousands of non-violent and violent protestors who had
inflicted severe damage on the downtown, which led to the
City’s promulgation of Order No. 3. The City’s law enforce-
ment resources (and officers themselves) had been taxed
severely. But Smith faced a relatively calm situation at the
point and time he encountered Skove on December 2. The
City did not present evidence that Smith was dealing with vio-
lent protestors when he encountered Skove. By contrast,
Smith’s deposition testimony indicated that, just before he
saw Skove, Smith was talking with a fellow officer and “tak-
ing in the atmosphere.” Viewing the evidence in the light
most favorable to Skove, Smith when seizing Skove’s sign
was not then actively engaged in preventing others from
entering the restricted zone, nor was he immediately engaged
in combating violence. In fact, Skove submitted video evi-
dence that, in the light most favorable to Skove, shows that
others were not immediately present and the circumstances
were not exigent when Smith confronted Skove and seized his
sign.
[24] We also decline to establish a general exception to the
Fourth Amendment’s warrant requirement for conduct that,
absent special needs consistent with the Supreme Court’s pre-
cedents, is asserted to be “reasonable.” It has long and consis-
tently been the law that exceptions to the warrant requirement
preceding searches and seizures are for defined categorical
circumstances. See McArthur, 531 U.S. at 330-31 (listing
examples of exceptions to the warrant requirement). Because
an arrest was not made, and no established exception justifies
the warrantless seizure on undisputed facts, we conclude that
there is a genuine issue of material fact bearing on exigency
and whether Smith’s seizure of Skove’s sign violated the
Fourth Amendment’s protection against unreasonable sei-
zures.
6018 MENOTTI v. CITY OF SEATTLE
We proceed to the second step of qualified immunity analy-
sis, under which we must determine whether the right was
clearly established. Saucier, 533 U.S. at 201. We have held:
Whether a right is “clearly established” for purposes
of qualified immunity is an inquiry that must be
undertaken in light of the specific context of the
case, not as a broad general proposition.” In other
words, “[t]he contours of the right must be suffi-
ciently clear that a reasonable official would under-
stand that what he is doing violates that right.”
Graves v. City of Coeur d’Alene, 339 F.3d 828, 846 (9th Cir.
2003) (quoting Saucier, 533 U.S. at 201-02) (alteration in
original).
[25] The question before us then becomes whether a rea-
sonable officer in Smith’s position would have understood
that he could not lawfully seize Skove’s sign absent an arrest
of Skove or exigent circumstances. We have rejected the posi-
tion that a seizure could be made based on probable cause to
arrest, when the arrest was not completed. Moreover, viewing
the evidence in the light most favorable to Skove, we cannot
say that the circumstances were indisputably exigent at the
time and place Officer Smith confronted Skove and seized his
sign. Because the exceptions to the Fourth Amendment’s war-
rant requirement have been categorically defined, and because
“in the ordinary case, seizures of personal property are unrea-
sonable within the meaning of the Fourth Amendment . . .
unless . . . accomplished pursuant to a judicial warrant issued
by a neutral and detached magistrate after finding probable
cause,” McArthur, 531 U.S. 326, 330-31 (internal quotation
marks omitted), we hold that a reasonable officer in Smith’s
position would have understood that his warrantless seizure of
Skove’s sign without an arrest and without exigency offended
the guarantees of the Fourth Amendment. We therefore
MENOTTI v. CITY OF SEATTLE 6019
reverse the district court’s grant of qualified immunity to
Smith on Skove’s Fourth Amendment claim.74
[26] As for Skove’s First Amendment claim against Smith,
we determine that the district court properly granted summary
judgment to Smith. To prevail on his First Amendment claim,
Skove must provide evidence showing that Smith “deterred or
chilled [Skove’s] political speech and such deterrence was a
substantial or motivating factor in [Smith’s] conduct.” Sloman
v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994). Smith testi-
fied in deposition that he approached Skove and seized
Skove’s sign because Skove was engaged in protest, an activ-
ity Smith knew to be prohibited by Order No. 3. Skove sub-
mitted no evidence to the district court to establish that
Smith’s actions were motivated by opposition to Skove’s
political beliefs or that Smith’s actions were motivated by a
desire to chill Skove’s speech. Viewing the evidence in the
light most favorable to Skove, we conclude that the district
court properly granted summary judgment to Smith on
Skove’s First Amendment claim, and we affirm the district
court on this issue.
74
Skove contends that he is entitled not only to reversal of the summary
judgment given Smith, but also to a grant of summary judgment establish-
ing Smith’s liability for the seizure of Skove’s sign. On this requested
summary relief for Skove, we view the evidence in the light most favor-
able to Smith, rather than as we have viewed it above most favorably to
Skove. Smith testified by declaration that when he seized Skove’s sign he
intended to “detain Mr. Skove to determine whether he was authorized to
be in the zone.” Smith also said in his declaration that “[g]iven the nature
and extent of the protests in the area and my assignment, I decided not to
pursue Mr. Skove to detain him or arrest him for violating [Order No. 3]
and ignoring my directives.” Viewing the evidence in the light favorable
to Smith, we conclude that there are genuine issues of material fact
whether the circumstances at the time and place of the seizure showed suf-
ficient exigency to justify warrantless seizure. See, e.g., McConnery, 728
F.2d at 1199. The factual issue of exigency must be presented to a trier
of fact.
6020 MENOTTI v. CITY OF SEATTLE
E
We reverse the district court’s grant of summary judgment
to the City on Menotti’s Fourth Amendment and false arrest
claims and remand those claims for trial. We also reverse the
district court’s grant of qualified immunity to Officer Smith,
and remand for trial the issue of Smith’s liability for the sei-
zure of Skove’s sign. We affirm the district court’s dismissal
of all other claims asserted by Menotti, Sellman, Stedl, and
Skove.
V
Justice Stewart once observed for the Supreme Court, in no
uncertain terms, that “[t]he guarantees of the First Amend-
ment have never meant that people who want to propagandize
protests or views have a constitutional right to do so whenever
and however and wherever they please.” Greer v. Spock, 424
U.S. 828, 836 (1976) (quoting Adderley v. Florida, 385 U.S.
39, 47-48 (1966)).75 When a city is charged with the critically
important responsibility of hosting a convention of world
leaders, a setting in which the eyes of the world are on the city
and our country, and our nation’s reputation is at stake as
well, the city must have the power to maintain civic order in
a responsible way that does not unduly interfere with the gath-
ered convention or with civil liberties. In balancing desired
freedom of expression and the need for civic order, to accom-
modate both of these essential values, a measure of discretion
necessarily must be permitted to a city, on the scene with
direct knowledge, to fashion remedies to restore order once
lost. It may be that a violent subset of protestors who disrupt
civic order will by their actions impair the scope and manner
of how law-abiding protestors are able to present their views.
75
Justice Stewart’s quoted observation was made in the context of the
Court’s decision restricting protest on a military base. The same idea,
however, animates the permissibility of reasonable time, place, and man-
ner restrictions on protest in a public forum.
MENOTTI v. CITY OF SEATTLE 6021
Given the breakdown of public order that confronted Seattle,
we decline to hold unconstitutional the City’s implementation
of procedures necessary to restore safety and security to its
residents and to the visiting world leaders. As occurred in this
case, a city hosting an important meeting may be besieged
with tens of thousands of persons, some with lawful intentions
in the best tradition of civic protest, but others with violent
and disruptive aims. When violent protestors substantially dis-
rupt civic order, there must necessarily be consequences for
all if a city is to satisfy its superordinate duty to provide safety
and security. While respecting the liberty of protestors, a city
must be permitted to act reasonably, within the bounds of the
Constitution, to fulfill its responsibilities of providing physi-
cal security and the maintenance of order that is required for
all of a city’s residents and visitors.
We reject the facial challenges to Order No. 3, as well as
the general challenge to police discretion implementing it
under the Operations Order. In most respects, and particularly
in regard to the permissibility of the City’s adoption of Order
No. 3 and its accompanying Operations Order, we affirm the
judgment of the district court. However, as explained above,
viewing the evidence in the light most favorable to Appel-
lants, in some instances police conduct may have gone too far
and infringed certain individual protestors’ constitutional
rights by making the content of their expressed views the test
for their entry into the restricted zone. We reverse and remand
to the district court the Hankin plaintiffs’ as-applied challenge
to Order No. 3, as well as the issue of class certification. We
also reverse and remand to the district court identified issues
regarding the arrest of Menotti and the seizure of Skove’s per-
sonal property. On the record before us, we conclude that trial
of disputed facts is necessary on the claims for which we
reverse and remand.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
6022 MENOTTI v. CITY OF SEATTLE
Appendix A (graphic omitted)
MENOTTI v. CITY OF SEATTLE 6023
Appendix B (graphic omitted)
6024 MENOTTI v. CITY OF SEATTLE
PAEZ, Circuit Judge, concurring and dissenting:
I concur in the majority’s holding that Seattle’s Civil Emer-
gency Order Number 3 (Order No. 3) was content-neutral and
served a significant government interest. I cannot agree, how-
ever, that Order No. 3 was narrowly tailored and left open
ample alternative channels of communication. I also disagree
with the majority’s determination that Order No. 3 provided
adequate guidance to the law enforcement officers who were
assigned the task of maintaining the perimeter of the “No Pro-
test Zone.”1 Accordingly, I respectfully dissent from Parts
III.A.2-3 and III.B of the majority’s opinion.
Assuming that Order No. 3 had been a valid time, place,
and manner restriction on protected speech, I agree with the
majority that the Hankin class action plaintiffs have raised
material triable issues of fact regarding their claim that City
officials enforced Order No. 3 to suppress the First Amend-
ment speech of those individuals who sought to protest the
World Trade Organization’s policies. The Hankin class action
plaintiffs should be permitted to proceed with their challenge
to the Order as applied, and I therefore concur in Part III.C.
of the majority opinion.2
1
According to Assistant Seattle Police Chief Harvey Ferguson, “that
was the term that was being used” until “word came out . . . that was an
inappropriate term” and the name was changed to “restricted zone.” As I
explain in Part I.B., below, the City’s policy was to keep this area protest-
free. City officials, police, and demonstrators all used the term “No Protest
Zone” to refer to the area, and therefore I use that term throughout this dis-
senting opinion.
2
Because I would hold that Order No. 3 is constitutionally invalid, I
would reverse the district court’s adverse ruling as to Thomas Sellman and
remand for further proceedings. I therefore dissent from Part IV.B. As I
explain in more detail in Part III, infra, I concur in Parts IV.A and D of
the majority opinion that Victor Menotti and Doug Skove have presented
sufficient evidence to create material factual disputes for trial. I dissent,
however from Part IV.C, affirming the summary judgment ruling against
Todd Stedl.
MENOTTI v. CITY OF SEATTLE 6025
The heart of my disagreement with the majority is its con-
clusion that Order No. 3 was narrowly tailored, that it left
ample alternative avenues of expression and that, as imple-
mented, it gave sufficient guidance to law enforcement offi-
cers to determine who could be admitted into the No Protest
Zone. The majority concludes that the City’s ban on all
expressive activity in the 25 square blocks surrounding the
WTO convention and hotels that housed WTO delegates
passes our searching First Amendment review. I cannot agree,
and in my view that conclusion is inconsistent with our long
tradition of protecting free speech even when that protection
may seem inconvenient.
The majority is correct that our inquiry into the content
neutrality of Order No. 3 focuses only on the face of the
Order itself. But in evaluating whether Order No. 3 is nar-
rowly tailored and leaves open ample alternative avenues of
expression, we look deeper than the text. Instead, “we must
consider the [City]’s authoritative constructions of the ordi-
nance, including its own implementation and interpretation of
it.” Forsyth County v. Nationalist Movement, 505 U.S. 123,
132 (1992) (emphasis added). While the text of Order No. 3
may be content neutral, the City’s policy was to apply the law
selectively such that it was not narrowly tailored to serve its
asserted non-speech-related interest of preserving safety and
order. As the Seattle City Council put it, “while [Order No.
3] might have met legal scrutiny on paper, [it] resulted in
actions that were explicitly intended to limit protest.” Report
of the WTO Accountability Review Committee, Seattle City
Council, at 5 (Sept. 14, 2000) (hereinafter “ARC Report”).
I. Facts
A.
The picture painted in the majority’s version of the events
surrounding the WTO convention in Seattle fails to capture
the full story. I agree with the majority that the violent prote-
6026 MENOTTI v. CITY OF SEATTLE
stors created a dangerous, even chaotic situation in Seattle
that warranted substantial responsive measures by the City to
restore order. The City surely had a significant interest in tak-
ing remedial action. Even in light of the serious violence,
however, the City’s response—cordoning off a 25-square-
block area of downtown Seattle to restrict all forms of protest
—was not constitutionally justified.3 The majority opinion
omits several crucial facts that undermine its portrayal of a
city in crisis. First, contrary to the majority’s assumption,
Order No. 3 was not justified by “the dire facts confronting
the City in the early morning hours of December 1 during the
WTO conference.” Slip op. at 5990. As Assistant Seattle
Police Chief Edward Joiner’s deposition testimony made
clear, the decision to declare a state of emergency and to
impose the police perimeter around the downtown area was
not made in direct response to the violence and vandalism.
That decision instead followed the realization that many of
the peaceful protestors from the large, well-organized labor
march would not be leaving Seattle. The crowd was simply
larger than the police had anticipated. Joiner testified that
[a]s the march concluded and it became evident that
a sizeable portion of the marchers were not going to
leave the downtown area as we anticipated and it
became clear that we were not going to be able to
bring the situation under control without taking some
sort of drastic action, I made the decision that the
only—the only recourse we had was to establish the
police perimeter where we could provide security for
the delegates and so forth.
3
The majority states that “[t]he whole world witnessed the rampant vio-
lence and chaos in the streets of Seattle at the outset of the WTO meet-
ing.” Slip op. at 5956 n.7. But as the Seattle City Council suggested, those
images may not have accurately reflected the situation in Seattle, as peace-
ful political demonstrators “were drowned out by press coverage of distur-
bances.” ARC Report at 4.
MENOTTI v. CITY OF SEATTLE 6027
Making the decision to impose the police perimeter, the City
drew no distinction between peaceful protestors and those
likely to cause violence—Joiner, for example, testified that
during this process, the concept of peaceful and non-peaceful
protestors “merged.”
Second, although I do not suggest that the violence con-
fronting the City was insignificant, the majority’s account
exaggerates its pervasiveness. The ARC Report, for example,
noted that even according to the highest estimates, only “well
under one percent” of the demonstrators in Seattle engaged in
acts of vandalism or violence. ARC Report at 3. Mayor Paul
Schell agreed that he had “expected the vast majority of the
protestors to be peaceful, and, in fact, it turned out that the
vast majority of protesters were peaceful.” At a press confer-
ence at approximately 5:00 p.m. on November 30, Mayor
Schell maintained that the protestors for the most part “were
friendly—they were our sons and daughters, they were our
neighbors, they were the people who we work with. And
there’s no reason to be afraid of them.” The peaceful prote-
stors even made efforts to prevent the violence by, for exam-
ple, blocking vandals from access to store windows they
attempted to break.
Further, the majority does not paint a clear picture of the
situation confronting City officials at the time they adopted
the Order. The violence of November 30 had ended before
Order No. 3 was implemented. The nighttime curfew—not
challenged here—had gone into effect and the streets of
downtown Seattle were calm and under control. On Tuesday
night, at roughly 8:00 pm, the police did a sweep of the streets
and, according to Joiner’s testimony, discovered that “[a]t that
time all of the demonstrators had left. The situation was under
control. It was quite peaceful.”4
4
The majority’s warning that “[e]ven a fierce battle may experience a
respite of calm, and the calm of an evening can precede a storm in the
morning[,]” slip op. at 5976 n.33, is alarmism supported by neither the
6028 MENOTTI v. CITY OF SEATTLE
As the violence on November 30 erupted, the police
responded with force that, as the City Council’s report con-
cluded, likely intensified the situation. “As authorities lost
control of the streets they resorted to methods that sometimes
compromised the civil rights of citizens and often provoked
further disturbance.” ARC Report at 3. The police response
“was sometimes out of proportion to the threats faced” and
included “seemingly gratuitous assaults on civilians.” Id. at 4.
Plaintiffs’ expert Robert Klotz, the former Commander of the
Special Operations and Traffic Division in the Washington,
D.C. police force, concluded that “the state of emergency
declared on November 30, 1999 was to a large extent an
emergency of the City’s own making.” Klotz continued,
Being seen and heard is why demonstrators come to
the event, and if they feel they are barred from doing
so, it will simply make the crowd angry and more
dangerous. It also makes the police the object of dis-
satisfaction, rather than the original source of pro-
test. It can also motivate some people to protest
police activity who never wanted to be involved
originally.
evidence nor the law. The fact that violence had ended and Seattle’s
streets were calm when the Mayor issued the Order is undisputed in the
record. Nonetheless, the majority provides the City “reason to believe . . .
that the violence attendant to the WTO conference had not ended prior to
Order No. 3’s enactment, but had just temporarily subsided and would
resume contemporaneous with WTO proceedings.” Id. at 45 n.44. At the
summary judgment stage, however, we must view the evidence in the light
most favorable to the nonmoving party. Balint v. Carson City, 180 F.3d
1047, 1054 (9th Cir. 1999) (en banc). Only by viewing the evidence in the
light most favorable to the City can the majority conclude that the violence
had “temporarily subsided.” With this improper factual determination, the
majority sidesteps binding circuit law, which holds that “the occurrence of
limited violence and disorder on one day is not a justification for banning
all demonstrations, peaceful and otherwise, on the immediately following
day (or for an indefinite period thereafter).” Collins v. Jordan, 110 F.3d
1363, 1372 (9th Cir. 1997).
MENOTTI v. CITY OF SEATTLE 6029
One consequence “was to bring sleepy residents out of their
homes and mobilize them as ‘resistors.’ ” ARC Report at 11.
City officials were apprised of the large number of prote-
stors planning on coming to Seattle well in advance of the
conference. Klotz stated in his declaration that “[t]he pre-
conference estimates of the size of the crowds were generally
consistent with the number of people who actually attended.”
At a police training on demonstration management and crowd
control that Seattle Police Captain Jim Pugel attended in July
1999, officials “said on a scale of 1 to 10 the WTO rated
about a high 8.” Furthermore, the violence that occurred in the
weeks leading up to the conference should have put the City
on notice that they would need to plan well for the event. See
slip op. at 5955-56. According to Captain Pugel’s own After
Action Report, police officials were aware by at least Novem-
ber 28—if not earlier—that protest groups were “intent on
facilitating between 500 and 1,500 ‘civil disobedience’
arrests” on November 30. They also knew at that time that
they had insufficient resources and “that we might not be able
to sustain the arrest of so many persons.” There should have
been no surprises.
According to the ARC Report, however, “[p]lanning for the
WTO was driven by political and cost considerations that
undermined the city’s ability to cope with the disorders that
ensued.” ARC Report at 8. The Report found that the “city
government failed its citizens through careless and naive plan-
ning, poor communication of its plans and procedures, con-
fused and indecisive police leadership, and imposition of civil
emergency measures in questionable ways.” Id. at 3. Klotz
similarly concluded that the City “did not adequately plan or
train for the WTO conference,” focusing its attention on
highly unlikely events rather than “events that were, accord-
ing to the available intelligence, quite likely to occur (i.e.,
organized civil disobedience and some vandalism).”
6030 MENOTTI v. CITY OF SEATTLE
B.
The manner in which the City implemented Order No. 3 is
also worthy of more searching inquiry than the majority
affords. The plaintiffs submitted a great deal of evidence to
undermine the City’s claim that Order No. 3 was necessary to
contain and prevent the violence of November 30. Notably,
the Order allowed anyone who did not visibly display opposi-
tion to the WTO to enter the zone, without regard to danger-
ousness or likelihood of violence. While the police scoured
for “No WTO” signs and buttons, there was no evidence that
officers checked bags for crowbars, weapons, or bombs.
Lauren Holloway, for example, stated in her declaration that
the officers she encountered at the perimeter “did not search
me for weapons or ask for ID. They were only interested in
our signs and stickers, which they either confiscated or forced
us to remove.” Andrew Russell recounted a similar experi-
ence in his declaration. But this “selective or partial” No Pro-
test Zone did not serve the City’s safety and security interests,
as Klotz explained:
[I]t does not serve security goals to have a suppos-
edly secure area where a very large number of ines-
sential people are allowed to enter and roam at will.
By giving a free pass to people who claimed to live,
work, or even shop at locations within the zone, the
City’s orders allowed a very large number of people
into this supposedly secure area. . . . Serious terror-
ists or other people bent on breaking the law will
have no trouble taking off their anti-WTO stickers at
the boundary and pursue their plans once inside the
zone.
The plaintiffs also presented significant evidence that even
as members of the general public were permitted entry, prote-
stors were turned away from the No Protest Zone. Police
Chief Norman Stamper testified that, under the Operations
Order that implemented Order No. 3, “a reasonable purpose
MENOTTI v. CITY OF SEATTLE 6031
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.” At least as late as Friday, December 3,
official documents referred to the area as the “ ‘No protest’
zone.” Seattle Police Officer Christopher Myers in his deposi-
tion testimony referred to it as “the protest zone. There was
where protesters were allowed. There was where protesters
weren’t allowed.” And testimony from several protestors
reveals that police officers guarding the perimeter used the
term “No Protest Zone” when speaking with the public.
Stamper clarified in his deposition that “[f]rom [the line
officers’] point of view it effectively meant anybody coming
in to protest” would be excluded from the zone. Joiner testi-
fied that City officials even considered the idea of allowing in
peaceful demonstrators but rejected it, “because I think at that
time it had been made very clear there were not going to be
peaceful demonstrations within that area.” If a person
attempting to enter the zone did so, not for the purpose of
shopping, but instead intended, individually, to peacefully
protest, “she would not have been allowed in.”
According to the City Council’s report, “officers in the
field were briefed with instructions that there would be no
protests allowed.” ARC Report at 15. Seattle Police Officer
Ron Smith testified that, according to “the briefing [he] was
given,” protesting was not a legitimate reason to enter the
zone. The State Patrol, one of the cooperating law enforce-
ment agencies, made that policy explicit: its response plan for
December 1 stated that “[o]nly people with legitimate busi-
ness will be allowed to enter, (working in the area, live, etc.)
[sic]. Obvious protesters, people without legitimate business,
or people that refuse to give information will not be allowed
in the area.” In a televised public address, Joiner warned,
“Anyone that goes into that area to protest will be arrested
immediately.”
Even those who should have been granted access to the
zone according to the plain terms of the Order, such as people
6032 MENOTTI v. CITY OF SEATTLE
who lived or worked in the zone, were denied entry if they
wore “No WTO” stickers or carried protest signs. Officer
Smith testified that the policy as conveyed to him by the
Mayor was that “[e]ven if you live there, you are not sup-
posed to be protesting” because “the protest area is down
south of Seneca and west the Fourth [sic]. That’s what the
Mayor said.” The plaintiffs offered numerous examples of
Seattle police enforcing just such a policy. Michael Louis
Evanson, for example, stated in his declaration that while on
his way to a tuxedo fitting on 4th Avenue, he was stopped by
police officers who snatched his hat and ripped off a sticker
that read: “WTO: If it doesn’t work for working families, it
doesn’t work.” An officer also reached under Evanson’s pon-
cho without permission, grabbed papers he was holding and
would not return them. The papers were invitations to a party
at the Methodist Church that had nothing to do with the pro-
test.
Martha Ehman, an attorney who worked within the zone,
declared that she passed through the perimeter by following
the same route she normally took to walk to work every day.
She saw three people in business suits pass through the perim-
eter without being stopped, but she was dressed casually and
officers asked her where she was going. They let her pass
when she told them where she worked, but as she walked
away the officers yelled for her to stop when they noticed that
the words “No WTO” were written in masking tape on her
backpack. They asked her to remove it and she refused; they
then informed her if she did not remove the tape she would
be arrested. To avoid arrest, Ehman did as the officers
instructed.
Ronald Matyjas also worked downtown, at his architect
office just north of the Pike Place Market. He stated in his
declaration that on December 1, he wore his typical work
attire “with one difference: I had a[n 8.5 x 11”] sign attached
to the back of my raincoat that said “No WTO.” As he was
walking to work, he attempted to pass through the perimeter
MENOTTI v. CITY OF SEATTLE 6033
but he was stopped by an officer who asked him why he was
walking through the area. Matyjas replied that he was on his
way to work. The officer told him he could not go downtown
with that sign on his coat; another officer tore the sign off
without Matyjas’s permission. Matyjas noted that “[t]he other
officers standing nearby did nothing to stop or correct the
officers that confronted [him].”
Ehman, Matyjas, and Andrew Russell all stated in their
declarations that once they took off their political signs, for
the remainder of the week they were not stopped by police.
They were only stopped for wearing political messages.
Michael W. Gendler, another Seattle attorney, was a part-
ner at a law office located on the edge of the zone at Fourth
Avenue and Pike Street. He declared that he and three of his
employees left their office carrying three protest signs which
read, respectively, “Downtown Workers Against the WTO,”
“Protect Free Speech!,” and “Say No to WTO” with the
words “No Sale” imposed over a picture of the globe. When
they attempted to enter the zone, police stopped them and
refused entry even after Gendler showed the officers his busi-
ness card and address. Gendler cited Order No. 3 and told the
officer that he had a right to enter because he was an “owner
of a business within the limited curfew area.” The group was
not allowed to enter. Gendler then got rid of his sign and the
group walked one block further to another entrance, where
Gendler (no longer displaying any anti-WTO messages) sim-
ply walked through the perimeter “without being stopped or
questioned by any of the officers.” His employees, however,
still held their signs and they were stopped by officers who
told them “they would not be allowed to proceed because they
were attempting to enter a ‘no protest zone.’ ” They again dis-
played their business cards and again were denied entry.
“Both were informed that they could proceed without their
signs, but not with them.” They abandoned their signs and
proceeded to enter the zone.
6034 MENOTTI v. CITY OF SEATTLE
In many other cases, police officers simply made no
attempt to determine whether or not an individual was autho-
rized to enter the zone once they spotted any anti-WTO pro-
test material. Andrew Russell, for example, was stopped by an
officer as he attempted to enter the zone wearing a “No
WTO” button. An officer told him that he could not wear his
button inside the “No Protest Zone. He used that specific
term.” Russell was allowed to enter the zone and keep the but-
ton only after removing it from his clothes and putting the
button away.
Liad Kantorowicz and her friend Lauren Holloway were
stopped by the police at the perimeter. Kantorowicz held a
sign and wore three stickers; two “No WTO” stickers and one
sticker on her chest which read, “Attention Police Enforce-
ment Officer, I refuse . . . to speak to you. I demand to have
my phone call. I demand to call a lawyer.” The sticker also
included phone numbers of lawyers. An officer noticed Kan-
torowicz’s sign and asked to take it away. When she refused
to give it to the officer, Kantorowicz recounted,
he just grabbed the sign from me and took it, threw
it over his shoulder. And I said, “Can I have my sign
back? It’s my property.” Maybe at that point he said,
“No. This is a no-protest zone.”
An officer then grabbed Kantorowicz and removed the stick-
ers from her clothing.
Holloway carried a sign that read, “It’s Our Duty, It’s Our
Right, To Fight the Power.” She also wore stickers with vari-
ous WTO-related slogans. When she approached the perime-
ter, officers grabbed her sign, crumpled it up, and threw it
away behind a line of police. They told her and Kantorowicz
that they were in the “No Protest Zone” and that they would
have to take off every anti-WTO sticker or they would be
arrested. When an officer grabbed Holloway’s arm, she told
MENOTTI v. CITY OF SEATTLE 6035
him she would remove the stickers herself “[t]o get him to
leave me alone.”
Sue Bastian, a schoolteacher who traveled to downtown
Seattle for the WTO protests, recounted, “I was just a little
old lady on my way to the Methodist church carrying these
signs in a bag, and I was simply walking down the street on
my way to the church.” In a bag, she carried one sign that
read “Free Trade is Slave Trade” and another that read
“Global Cops for Global Corps.” She was outside the police
perimeter and she did not believe that she was within the zone
established by Order No. 3. Nonetheless, she stated in her
declaration that a police officer approached her and blocked
her passage,
and then I was surrounded by four or five others.
One of them—or somebody took my WTO sticker
off my rain jacket. The sticker was underneath my
backback. And one of the police took my signs away
from me and looked at them and handed them to
another policeman, who took them over onto the
sidewalk and broke them.
The officers told her she was not allowed in the zone, refused
to return her signs and told her “if you don’t be quiet and
leave, I will have you arrested.”
Rita Herkel had a similar experience on her way to the
Methodist Church. At the northeast corner of Fourth and
Spring, Herkel and her friends were waiting for the light to
change so they could cross the street when three police offi-
cers approached them. Herkel and her friends were wearing
lime green stickers approximately 3 x 5″ that read “No to
WTO.” The officers said, “You’re not allowed to wear stick-
ers,” and began tearing the stickers off of Herkel’s clothes
without permission. They searched her friend’s backpack,
also without permission, but did not say what they were look-
6036 MENOTTI v. CITY OF SEATTLE
ing for. While forcibly removing the stickers from another
woman in the group, the officers tore her coat.
Harold Green, an attorney in Seattle, heard on television
that a “no protest zone” had been established downtown. As
he stated in his declaration, “[t]hat struck me as an unconstitu-
tionally broad edict, so I determined to learn from personal
experience what the scope of the edict was.” He wrote the
words “I PROTEST!” on the back of one of his business cards
and, wearing a suit and tie, approached an officer at the
perimeter and
asked politely, “If I ask you a question, will I be sub-
ject to arrest?” He said that I would not. I then pulled
my business card from my pocket, showed him the
side which said “I PROTEST!,” and asked him, “If
I were to cross this line and display this card, would
I be subject to arrest?”
He immediately responded that I was subject to
arrest at that moment. I then asked him, “Am I in a
zone where what I am doing is illegal?,” and he
repeated that I would be arrested if I did not leave.
I was immediately confronted by two or three
other riot police officers with visored helmets and
long night sticks who began to shout repeatedly at
me, “Go!”, “Just Go!” . . . As I did not want to be
arrested, I put the card back in my pocket and
walked back down (west) Spring Street.
Plaintiff Doug Skove similarly went downtown to protest
after hearing a news broadcast describe the zone as a “no pro-
test zone.” He went inside the zone carrying a sign that said
“I have the right to protest non-violently.” Skove testified at
his deposition that Officer Ron Smith grabbed the sign out of
his hand without Skove’s permission, saying “I’m going to
take that” before any other communication between the two.
MENOTTI v. CITY OF SEATTLE 6037
Smith told him to come over but Skove instead walked away
and was not pursued. This incident was captured on videotape.5
Officer Smith never ascertained whether Skove was autho-
rized by the Operations Order to be within the zone before
tearing the sign away from him. Smith testified in deposition
that he determined only that Skove “appeared not to belong
there” because “[h]e was walking around with a sign.” Skove
then went to the corner of Fifth Avenue and Pike Street and
took out a second sign, where another unidentified officer
again took the sign from his hands without permission and
without any prior verbal exchange.
Other people were stopped by the police while attempting
to more actively protest within the zone, confirming the City
policy that protesting was not a “reasonable purpose” within
the meaning of the Order. Thomas Sellman, a plaintiff in this
appeal, heard on the news that Seattle had adopted a “no pro-
test zone” where people could enter for any reason other than
protest. He went downtown “basically to find out what was
really meant and whether the broadcasters in some way had
accurately described the intent of the Mayor and the City of
Seattle.” He walked down the sidewalk, within the zone, and
distributed leaflets criticizing the WTO’s ability to overrule
endangered species laws. He was stopped by Detective S.D.
Stevens, who determined that Sellman’s activity was “obvi-
ously” not “legitimate business” within the scope of the Oper-
ations Order. Stevens told him he needed to go two blocks
south in order to protest. Instead of leaving, Sellman handed
one of his flyers to a WTO delegate as he walked by. Stevens
then placed Sellman under arrest for failure to disperse.
5
The videotape shows Smith approaching Skove and asking, “What did
the Mayor tell you? Okay? Other side of Fourth, other side of Seneca,
right?” Smith then ran toward Skove, who was crossing the street, and
grabbed his sign out of his hands. As previously noted, however, on the
City’s motion for summary judgment, we take the evidence in the light
most favorable to the plaintiffs and therefore credit Skove’s recollection
of the event. Balint, 180 F.3d at 1054.
6038 MENOTTI v. CITY OF SEATTLE
Plaintiff Todd Stedl went to the zone to hand out copies of
the First Amendment; if an officer stopped him he “planned
on saying ‘I’m not protesting; I’m educating.’ ” Stedl testified
at his deposition that the officer who first stopped him at
Fourth Avenue and Seneca Street reacted by saying, “ ‘not
with this you’re not,’ and he grabbed the fliers that I was
holding on to and then proceeded to dig into the bag where
I had the remaining fliers. . . . As he reached into the cloth
sack, I said, ‘you need a search warrant to take those.’ . . . He
said, I believe—he said something to the effect of, ‘no, I
don’t.’ ” His remaining fliers were seized but Stedl was not
arrested. When Stedl asked the officer for his badge number,
he was told to “get going.” He then left and continued to pro-
test only outside of the zone. Stedl testified that “I was intimi-
dated to the point that I felt that if I had returned to the no
protest zone to hand out the First Amendment, that I would
most likely get arrested, yeah, and that was not my intent
. . . .”
After many months of investigation, the Seattle City Coun-
cil concluded that “Seattle was not sufficiently mindful . . . of
the need to create an environment protecting the rights to
speech and assembly.” ARC Report at 5. The City’s policies
in implementing Order No. 3 targeted expressive activity but
did not seek to distinguish between violent and non-violent
protestors or to better-tailor the fit between Seattle’s security
problems and a legitimate solution.
II. Restrictions on Time, Place, and Manner of Speech
A. Narrow Tailoring
If a regulation restricting speech in a public forum is con-
tent neutral, our standard for determining whether it is nar-
rowly tailored is more relaxed. Perry Education Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). The
policy adopted “need not be the least restrictive or least intru-
sive means” available to survive this intermediate level of
MENOTTI v. CITY OF SEATTLE 6039
constitutional scrutiny. Ward v. Rock Against Racism, 491
U.S. 781, 798 (1989). But a government entity is not free to
adopt any regulation that serves its interests more effectively
than no regulation at all; a restriction may not burden “sub-
stantially more speech” than necessary to further the govern-
ment interest at stake. Id. at 799; see also Kuba v. 1-A
Agricultural Ass’n, 387 F.3d 850, 861 (9th Cir. 2004). “A
statute is narrowly tailored if it targets and eliminates no more
than the exact source of the ‘evil’ it seeks to remedy.” Frisby
v. Schultz, 487 U.S. 474, 485 (1988); see also Ward, 491 U.S.
at 799 (“Government may not regulate expression in such a
manner that a substantial portion of the burden on speech does
not serve to advance its goals.”). This is so even if the rule is
completely effective in eliminating the targeted evil. Id. at
799 n.7.
The 25 square blocks of downtown Seattle cordoned off by
Order No. 3 were plainly a public forum; indeed, city streets
are “quintessential public forums” which “ ‘have immemori-
ally been held in trust for the use of the public, and, time out
of mind, have been used for purposes of assembly, communi-
cating thoughts between citizens, and discussing public ques-
tions.’ ” Perry Education Ass’n, 460 U.S. at 45 (quoting
Hague v. CIO, 307 U.S. 496, 515 (1939)); see also ACLU of
Nevada v. City of Las Vegas, 333 F.3d 1092, 1099 (9th Cir.
2003). “No particularized inquiry into the precise nature of a
specific street is necessary; all public streets are held in the
public trust and are properly considered traditional public
fora.” Frisby, 487 U.S. at 481.
Our inquiry into whether Order No. 3 was narrowly tailored
should begin by analyzing the government’s asserted interests
in responding to the violence confronting Seattle on Novem-
ber 30. See Kuba, 387 F.3d at 858. Without doubt, a city has
a significant interest in preserving the safety of its residents
and visitors, and in preventing violence and vandalism on city
streets.6 See, e.g., Perry v. Los Angeles Police Dep’t, 121 F.3d
6
The majority’s assessment of the City’s significant interests is con-
fused and inconsistent, and changes subtly depending upon the argument
6040 MENOTTI v. CITY OF SEATTLE
1365, 1369 (9th Cir. 1997) (“Government interests in promot-
ing public safety and the orderly movement of pedestrians,
and in protecting the local merchant economy are . . . substan-
tial.”). A city cannot, however, use a concededly-legitimate
interest in “security” to justify a rule drawn as broadly as it
wishes. See Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8,
13 (1st Cir. 2004) (“Security is not a talisman that the govern-
ment may invoke to justify any burden on speech (no matter
how oppressive).” (emphasis in original)). Here, Klotz’s dec-
the majority seeks to bolster. At times, the majority cites “the core inter-
est” as protecting the president and foreign dignitaries. See slip op. at
5980-81 n.41. But it also claims that the City’s interest was in “maintain-
ing public order,” id. at 5975, “providing security to the core downtown
area,” id. at 5975 n.32, and “seeing that the WTO delegates had the oppor-
tunity to conduct their business,” id. at 5976.
In my view, the City had a significant interest in protecting the public
safety. That broad interest required that the City protect the public (includ-
ing President Clinton and foreign dignitaries) both inside and outside the
No Protest Zone, and provide safe transport for delegates to and from the
convention. Order No. 3 helped serve those interests, but it was a sledge-
hammer solution where a more tailored response would have preserved
First Amendment protections. Moreover, the City did not have a constitu-
tionally significant interest in sheltering delegates from the unpleasantness
or inconvenience of a large demonstration. The Order itself was justified
by a need “to protect the public peace, safety, and welfare” and to preserve
the safety of “delegates, dignitaries, citizens, public safety employees and
protestors” alike.
The City now argues, relying on Hill v. Colorado, 530 U.S. 703, 718
(2000), that it had a significant interest in protecting the delegates’ “right
to be left alone.” In Hill, the Supreme Court upheld a law that prohibited
any person from knowingly approaching within 8 feet of another person
to protest, within designated areas near medical facilities. Id. But in Kuba,
we clarified that Hill “did not ‘protect a potential listener from hearing a
particular message,’ but only ‘from the potential physical and emotional
harm suffered when an unwelcome individual delivers a message by phys-
ically approaching an individual at close range.’ ” 387 F.3d at 861 n.10
(quoting Hill, 530 U.S. at 718-19 n.25). As in Kuba, the audience here was
not “particularly vulnerable,” id., and therefore did not need “to be left
alone.”
MENOTTI v. CITY OF SEATTLE 6041
laration suggests, “[t]he City’s goal should have been to trans-
port the delegates to the conference, not necessarily to protect
a particular method of getting them to the conference (walk-
ing individually, without any designated route).” Viewing the
City’s interest in this broader context,7 it becomes clear that
such a sweeping prohibition on speech as Order No. 3
imposed was not justified.8
Like a hypothetical ban on handbilling, see Ward, 491 U.S.
at 799 n.7, Seattle’s ban on all protesting within a large area
of downtown Seattle might have effectively quelled violence
and improved safety. Nonetheless, because it “burden[ed]
substantially more speech than [was] necessary to further the
government’s legitimate interests[,]” Kuba, 387 F.3d at 861,
Order No. 3 was not narrowly tailored. The City’s solution
was a poor fit in several respects.
First, Order No. 3 was geographically larger than justified.9
7
The majority mischaracterizes my assessment of the City’s interest as
one more narrow than the situation required. Slip op. at 5975-76 n.33. That
is inaccurate. The City’s significant interest in safely transporting dele-
gates to the convention sites is certainly broader than the interest Order
No. 3 actually served: “to protect a particular method of getting [dele-
gates] to the conference . . . .” The vast size of the zone was only crucial
to that more narrow interest. C.f. slip op. at 5979. The majority recognizes
that the City had an interest in “ensuring safe transit for delegates between
venues and hotels,” id., but offers no convincing rationale for rejecting the
plaintiffs’ less-restrictive alternatives.
8
The majority further maintains that “[t]he City also had an interest in
seeing that the WTO delegates had the opportunity to conduct their busi-
ness at the chosen venue for the conference; a city that failed to achieve
this interest would not soon have the chance to host another important
international meeting.” Slip op. at 5975-76. I am not convinced that a
city’s interest in hosting such an event is “significant” for purposes of this
analysis. Because it is not asserted as an interest on appeal, we should not
provide this justification for the City.
9
Order No. 3 also lasted longer than necessary. The City had the right
to “act vigorously, and more extensively, to restore order,” slip op. at
5985, but as noted above, order already had been restored. See supra at
6042 MENOTTI v. CITY OF SEATTLE
Protestors were banned from a 25-square-block area of down-
town Seattle that purposely encompassed every place they
could hope to communicate to delegates.10 Mayor Schell testi-
fied in his deposition that he never scrutinized or questioned
why the zone needed to be that large—simply, “the concept
was to enclose all of the delegate hotels.” But as Klotz
pointed out, the size of the No Protest Zone actually impeded
law enforcement anywhere other than the perimeter, since
“[i]t takes more officers to secure a larger space than a smal-
ler one.” The majority cites no case in which a court has
upheld a similarly-large prohibition; in fact, we have struck
down restricted zones of much smaller scale.11
Second, the Order banned all protesting without regard to
the likelihood that it would lead to violence or disorder. Not
only that, but any individual intent on causing harm could
easily enter the zone simply by asserting that he or she fell
within one of the Operations Order’s exceptions. Order No. 3
banned peaceful expressive activity without regard to the
City’s stated safety-related goals. The majority concludes that
6027-28 & n.4. The Mayor signed Order No. 3 in the early morning hours
of December 1, long after both violence and protest activity had subsided.
See slip op. at 5962. Again, as we stated in Collins, 110 F.3d at 1372, “the
occurrence of limited violence and disorder on one day is not a justifica-
tion for banning all demonstrations, peaceful and otherwise, on the imme-
diately following day (or for an indefinite period thereafter).”
10
The size of the No Protest Zone was reduced considerably on Decem-
ber 2. The new zone excluded the Westin Hotel after President Bill Clin-
ton departed Seattle. Slip op. at 5967, see also Appendix B.
11
See, e.g., Bay Area Peace Navy v. United States, 914 F.2d 1224, 1227
(9th Cir. 1990) (holding that a 75-yard buffer zone surrounding naval
ships in a parade, which the city claimed served its interest in safety and
security, was too large and a 25-yard zone would serve that interest just
as effectively); United States v. Baugh, 187 F.3d 1037, 1044 (9th Cir.
1999) (holding that a 150 to 175-yard restriction on protestors from the
entrance of a visitor center was too far); Kuba, 387 F.3d at 862 (holding
that a policy “which relegates communication activity to three small, fairly
peripheral areas” was too broad in relation to the government’s interest).
MENOTTI v. CITY OF SEATTLE 6043
it would have been too burdensome to require police to make
case-by-case distinctions between “those protestors with
benign intentions and those with violent intentions.” Slip op.
at 5980 (citing Hill, 530 U.S. at 729). This case is signifi-
cantly different from Hill: the police established a perimeter
around the No Protest Zone precisely so they could make
case-by-case determinations as to who would be allowed in
the restricted area. The majority would allow the police to
search people they suspected of carrying stickers and hand-
bills, but concludes that it “would not have been practical” for
police to search for crowbars or spray paint. Id. at 5982. I see
no basis for that conclusion.
In Collins, we evaluated a similar emergency order adopted
under analogous circumstances.12 After the verdict was
announced in the first Rodney King beating trial, San Fran-
cisco found itself amidst a number of demonstrations—both
peaceful and violent. 110 F.3d at 1367. Those demonstrations
led to “a number of violent incidents,” which caused property
damage and minor injuries. Id. In response, then-Mayor Jor-
dan declared a state of emergency and issued an order,
approved by the Board of Supervisors, authorizing the police
to disperse any gatherings “anywhere in the City and County
12
The majority is too quick to dismiss and marginalize Collins. By
asserting that the violence confronting Seattle was worse than the violence
San Francisco faced, the majority concludes that Collins is simply “inap-
posite.” Slip op. at 5984. But the majority’s analysis of Collins focuses on
the factors it finds favorable and ignores other important distinctions that
ought to inform our judgment. For example, the majority characterizes San
Francisco’s emergency order as “significantly broader,” id. at 5984 n.45,
dismissing the fact that the order was narrowly targeted to apply only to
gatherings “likely to endanger persons or property.” The circumstances in
Seattle were clearly analogous to Collins and the majority is far too eager
to sidestep binding circuit law.
Moreover, the constitutional narrow tailoring analysis accounts for vio-
lence as part of the City’s interest weighed against its tailored response.
I decline to adopt the majority’s approach that allows the legal framework
to be shaped and distorted by its characterization of the level of violence.
6044 MENOTTI v. CITY OF SEATTLE
of San Francisco whenever the peace officer on the scene has
reason to believe that the gathering endangers or is likely to
endanger persons or property.” Id. The order was thus specifi-
cally targeted to bar only demonstrations that would likely
lead to violence. We nonetheless held not only that the order
was facially unconstitutional, but that the law was so clearly
established than no reasonable officer could believe it would
be constitutional. Id. at 1374.
In making that determination, we noted that “the proper
response to potential and actual violence is for the govern-
ment 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 mea-
sure.” Id. at 1372. Similarly, in Baugh, we noted that “[t]he
Park Service, in lieu of restraining the expressive activity by
refusing to issue the permit, should have issued the permit for
the lawful expressive activity and then arrested the demon-
strators if and when they trespassed.” 187 F.3d at 1044. The
plaintiffs here argue that “police should have had more exten-
sive staffing on the street so that they could permit protestors
to enter anywhere and simply arrest and remove those who
violated the law.” Slip op. at 5982. Yet in the face of our clear
precedent, the majority asserts “we should hesitate to say that
the law requires such a solution” where a city confronts actual
lawbreakers. Id. at 5982. That hesitation is plainly contrary to
our circuit’s law.
Third, even those who were exempt under the plain terms
of the Order were denied entry if they displayed any visible
signs, stickers, or messages related to the WTO. The City’s
policy was clear: protesting was not a “legitimate purpose”
for entering the No Protest Zone. This restriction cannot sur-
vive constitutional scrutiny. In Virginia v. Hicks, the state
housing authority similarly attempted to ban “any person”
from the streets of a public low-income housing development
“when such person is not a resident, employee, or such person
cannot demonstrate a legitimate business or social purpose
MENOTTI v. CITY OF SEATTLE 6045
for being on the premises.” 539 U.S. 113, 116 (2003) (empha-
sis in original). Again like here, the policy was enacted “in an
effort to combat the rampant crime” that had infected the area.
Id. at 115. The Supreme Court upheld the policy under the
First Amendment only after interpreting “legitimate business”
to include expressive activity. Id. at 122; see also Hodgkins
v. Peterson, 355 F.3d 1048, 1059 (7th Cir. 2004). Seattle’s
clear policy of excluding any form of protest from its defini-
tion of “legitimate purposes” disregards the primacy we
afford such core political speech under the First Amendment.
We considered a similar problem in Grossman v. City of
Portland, where we invalidated a law forbidding organized
demonstrations in a public park without a permit.13 33 F.3d
1200, 1203 (9th Cir. 1994). Like Seattle’s interpretation of
Order No. 3, whether an individual was subject to arrest under
the statute depended entirely on whether that individual was
displaying a message.
Consider this: if [the plaintiff] and his companions
had been standing in a group in the park after meet-
ing unexpectedly, and had been discussing garden-
ing, or the Portland Trailblazers, the [plaintiff]
would not have been arrested. While the addition of
signs—or T-shirts, or an ‘address’—would have
occasioned the application of [the challenged ordi-
nance], the distinctions are absolutely empty in terms
of the ordinance’s stated goals.
13
Again, the majority dismisses Grossman by distinguishing the level of
violence facing the City. But the legal framework is not altered by an
assessment of the City’s interest as more or less important; the extent of
the City’s interest is accounted for inherently within the narrow tailoring
inquiry. See supra note 12. Although the facts in Grossman clearly differ
in certain respects from the facts at issue here, that does not render its rea-
soning inapplicable to this context. Indeed, where the majority finds it use-
ful to rely on cases involving minimal violence, the majority freely relies
on such authority. See, e.g., slip op. at 5980 (discussing Hill, 530 U.S. at
729); id. at 5988 (citing Bl(a)ck Tea Soc’y, 378 F.3d at 14).
6046 MENOTTI v. CITY OF SEATTLE
Id. at 1207. Order No. 3 operated in exactly the same way,
and we should not condone that affront to First Amendment
protections.
The majority’s conclusion to the contrary is plainly wrong.
Finding Grossman “inapposite,” the majority states that
Seattle’s “distinction between groups displaying messages
and groups not displaying messages” was appropriate because
protestors—and “not emergency personnel, business employ-
ees, or shoppers”—caused the violence. Slip op. at 5895 n.46.
The majority, however, overlooks two important points: First,
a distinction between protestors and non-protestors was not at
the heart of Order No. 3. The Order instead aimed to preserve
the public safety by implementing a limited curfew, which
would alleviate the disorder and chaos in the downtown area.
See id. at 18-19 (quoting Order No. 3 pmbl). But the majority
is also wrong as a factual matter. People within the zone
(including employees and shoppers) who simply displayed
messages were no more likely to cause violence than those
without messages. See id. at 15 (describing an incident where
a delegate, not a protestor, drew a gun against the crowd).
Whether or not an individual wore a “No WTO” button
should have had no bearing on her treatment by the police.
Fourth, the Order completely disregarded any interest in
maintaining peace and security in areas outside the zone.
While the Order may have served to protect delegates, it did
not protect anyone outside of the perimeter. “[P]olice opera-
tions . . . should convey a perception of even-handed commit-
ment to protecting demonstrators as well as the larger
public[;]” the City’s response to the demonstrations in Seattle
did not serve that goal. ARC Report at 4. The majority recog-
nizes the poor fit between the City’s asserted interests and the
means it chose to respond to the violence:
Even outside the restricted zone, there were some
problems of violence incidental to protest. Some vio-
lent protestors caused property damage, threw
MENOTTI v. CITY OF SEATTLE 6047
debris, blocked the street, and trapped people in their
cars. Some protestors jumped onto an officer’s patrol
car and shook it by its light bar, while others laid in
front of the car and prevented the officer from escap-
ing. Some protestors took over the fuel pumps at a
gas station and attempted to fill small bottles with
gasoline.
Slip op. at 5966 n.21. The majority acknowledges that a
Seattle police captain’s report “noted that officers ‘heard and
saw numerous incidents of property destruction, burglary, and
looting; but we were unable to leave our lines to take enforce-
ment actions.’ ” Id. at 5962. The large perimeter created by
Order No. 3 could only be maintained by a substantial police
presence; its size thereby allowed the violence in areas out-
side the No Protest Zone to continue. The perimeter in fact
served only the goal of protecting WTO delegates. It therefore
violated Ward’s requirement that “[t]he tailoring of the
restraint must of course correspond to the purposes it serves.”
Id. at 5974 (citing Ward, 491 U.S. at 799).
Finally, and fundamentally, Order No. 3 was not narrowly
tailored to the City’s interests because, as Klotz put it, “it was
sought to pursue the wrong goal . . . .” That is, the Order guar-
anteed that WTO delegates could walk safely from their
hotels to the Convention Center on city sidewalks. But as
noted above,14 the City’s significant interest was not so nar-
row; the City had less-restrictive alternatives available that
would have served its interest in safety and security equally
well. We have stated that “while the City need not employ the
least restrictive alternative in promoting its interest in public
safety, ‘if there are numerous and obvious less-burdensome
alternatives to the restriction on [protected] speech, that is cer-
tainly a relevant consideration in determining whether the
“fit” between ends and means is reasonable.’ ” Edwards v.
City of Coeur d’Alene, 262 F.3d 856, 865 (9th Cir. 2001)
14
See supra note 7.
6048 MENOTTI v. CITY OF SEATTLE
(quoting City of Cincinnati v. Discovery Network, Inc., 507
U.S. 410, 418 n.13 (1993)) (alteration in original). Here, the
plaintiffs suggested several.
The majority concludes that because Seattle’s pedestrian
“tunnels . . . did not connect all of the hotels and venues being
used by WTO delegates[,]” the plaintiffs’ suggestions were
not “feasible.” Slip op. at 5979 n.39. Even assuming the
pedestrian tunnels were an inadequate solution, the plaintiffs
in fact suggested various other worthwhile alternatives. First
and foremost, “the City should have developed a plan to
ensure that delegates could get to the convention.” As Assis-
tant Police Chief Clark Kimerer explained in his declaration,
the City was aware that “[a]n avowed and announced goal of
some of the protestors was to shut down the WTO conven-
tion, i.e., prevent the delegates from reaching their venues[;]”
therefore, transportation should have been an important part
of the City’s response.15 Klotz suggested, for example,
“planned bus and van service routes or controlled access
routes” for the delegates; instead, “the only transportation
option for delegates was to walk from their various hotels to
[the] Convention Center through routes of their own choos-
ing.” Klotz suggested several concrete alternatives:
A dedicated drive called Convention Way runs
underneath the Convention Center from approxi-
mately Ninth and Pike to Seventh and Union. It is
designed to accommodate tour busses and has an
easily protected indoor entrance to the facility. . . .
Thus, one transportation method that should have
been explored was sending buses from the hotels out
15
Contrary to the majority’s assertion, I do not “attempt to reduce the
City’s interest to transporting delegates . . . .” Slip op. at 5975 n.32. The
City’s interest extended to protecting the public safety broadly. But as this
discussion demonstrates, the measures employed by the City served a
much narrower interest and thus were not narrowly tailored. This list of
alternative measures simply demonstrates that fact.
MENOTTI v. CITY OF SEATTLE 6049
to the Interstate, and into the Convention Center
through this entrance. This route is indirect, but it
avoids almost all protest points.
Another transportation option that I did not see
explored is the pedestrian tunnel that runs from the
Rainier Square building . . . and exiting only a few
yards from a well protected off-street entrance to the
Convention Center. Mayor Schell testified in his
deposition that he used this route without incident on
the afternoon of November 30.
Further, the City could have used “flying squads,” or mobile
teams without responsibility for maintaining police lines, that
could have pursued and arrested vandals and violent prote-
stors. Although the City originally planned on pursuing this
strategy, “[w]hen the day arrived, the flying squads were
pulled off that duty to join the fixed police lines. As a result,
the relatively small number of vandals could destroy property
without threat of arrest.” Lieutenant Neil Low, who was
responsible for deploying flying squads, stated in his internal
WTO After Action report that “[i]n concept, we were to work
along with Lt. Joe Kessler’s plain-clothes squad in locating
and arresting hardcore protestors committing criminal acts. In
actuality, we became involved in crowd control within one
hour of being on the street, continuing with that for the
remainder of the week.”
“[T]he First Amendment demands that municipalities pro-
vide ‘tangible evidence’ that speech-restrictive regulations are
‘necessary’ to advance the proffered interest in public safety.”
Edwards, 262 F.3d at 863. As this list of alternative possibili-
ties demonstrates, Order No. 3, as written, was not necessary
to advance that interest, nor did the City provide any tangible
evidence of such a requirement. The Order was not narrowly
tailored and the majority’s contrary conclusion disregards
these important considerations.
6050 MENOTTI v. CITY OF SEATTLE
B. Ample Alternatives
Not only was Order No. 3 not narrowly tailored to serve the
significant government interest in safety and security, it also
failed to leave open ample alternative methods of communica-
tion. An entire medium of speech was foreclosed and the
WTO protestors were silenced and relegated to the sidelines.
“If an ordinance effectively prevents a speaker from reaching
his intended audience, it fails to leave open ample alternative
means of communication.” Id. at 866 (citing Heffron v. Int’l
Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 654
(1981)); see also Bay Area Peace Navy, 914 F.2d at 1229
(“An alternative is not ample if the speaker is not permitted
to reach the ‘intended audience.’ ”). Order No. 3 prevented
protestors from entering the 25-square block area where WTO
delegates could see and hear them. It confined all demonstra-
tions to outside areas where the message the protestors sought
to convey may never have reached the intended audience.16
In Bay Area Peace Navy, we found that a 75-yard security
16
The majority points out that the record is “void of evidence” that
protestors could not be seen or heard by delegates within the No Protest
Zone. Slip op. at 5992 n.54. But neither does the record reflect that the del-
egates could see and hear protestors, or that the alternative means of com-
munication available to the protestors were sufficient. Since it is unclear
whether the message could be heard in any recognizable form, at a mini-
mum the plaintiffs have established a genuine issue of material fact such
that summary judgment is inappropriate. Balint, 180 F.3d at 1054. The
majority states that “the undisputed facts in the record show that per the
terms of Order No. 3 protestors could communicate their views directly
outside most of the hotels where delegates were staying.” Slip op. at 5992
n.54. I am at a loss to find any evidence in the record to support that state-
ment; nothing in the record or in the majority opinion supports the conclu-
sion that protestors could “communicate” anything to delegates within the
No Protest Zone. The majority supports its factual assertion by drawing
inferences in favor of the City. As previously noted, this is improper at the
summary judgment stage. I am not prepared on this limited record to con-
clude as a matter of law that Order No. 3 left ample alternative avenues
of expression.
MENOTTI v. CITY OF SEATTLE 6051
zone “rendered the [plaintiffs’] . . . demonstration completely
ineffective and that passing out pamphlets on land or demon-
strating at the entrance to the pier are not viable alternatives
because the invited visitors, who are the [plaintiffs’] intended
audience, are not accessible from those positions.” 914 F.2d
at 1229 (quotation marks omitted). And in Baugh, we held
that forcing demonstrators to an area 150 to 175 yards away
from their intended audience “[did] not provide a reasonable
alternative means for communication of [the plaintiffs’]
views.” 187 F.3d at 1044. Because the regulation at issue in
Baugh was not tailored “narrowly to allow for lawful demon-
strations,” it did not leave open ample alternative means of
communication. Id. Similarly, Order No. 3, which forced
protestors to the sidelines and back entrances to the WTO
conference venues, did not provide viable alternatives.
City officials all but conceded that the avenues of expres-
sion left open were insufficient to allow for meaningful com-
munication. Before the conference began, Seattle police
negotiated with organized protest groups to set up “estab-
lished protest areas.” As Assistant Chief Joiner testified,
In establishing those sites we had tried to make sure
that they were well located or that they met the needs
of the protest groups, that they were visible, that they
could see whatever event that they were protesting.
In other words, they would be located very close to
them. And so we had tried to do everything we could
to accommodate peaceful protests on the front side.
Obviously that—those agreements broke down on
Tuesday morning.
After the agreements broke down and the Mayor issued Order
No. 3, Joiner explained that “we had to move people out of
that area.” In other words, the carefully-crafted protest areas,
which would have allowed protestors to see the delegates and
be seen by them, were eliminated. Instead, protestors were
6052 MENOTTI v. CITY OF SEATTLE
relegated to the inaccessible areas where no WTO delegates
would be bothered by their presence.
Without citing any authority, the majority concludes that
the ample alternatives test should be applied “with a practical
recognition of the dire facts confronting the City . . . .” Slip
op. at 5990. Nowhere in our case law, however, have we even
suggested that courts should balance this factor against a
city’s asserted need to restrict speech. Rather, we require that
ample alternative avenues of expression be available in order
for a time, place, and manner restriction to withstand First
Amendment scrutiny. There is no exception for exigency.
The City asks us to adopt the rule advocated by the Second
Circuit in Bl(a)ck Tea Society. There, the court noted that
demonstrators’ messages at “a high-profile event”—the 2004
Democratic National Convention—may reach delegates even
if speech is curtailed, “through television, radio, the press, the
internet, and other outlets.” 378 F.3d at 14. Because the
majority concludes that the ample alternatives requirement
was met in any event, it does not address this argument. Slip
op. at 5988 n.49. The district court, however, relied on this
argument to conclude that Order No. 3 did not foreclose rea-
sonable alternative avenues of expression. The district court
was mistaken and we should dispel any notion that media
interest in an event can be a substitute for constitutionally-
required alternative avenues of communication. As the Sev-
enth Circuit stated in Hodgkins, “there is no internet connec-
tion, no telephone call, no television coverage that can
compare to attending a political rally in person . . . .” 355 F.3d
at 1063. Public protests are at the heart of the First Amend-
ment and are critical for incubating civic engagement and
encouraging spirited debate.
We evoked this concern in Grossman, 33 F.3d at 1205 n.8,
and reiterated the particular importance of preserving parks as
forums for public debate precisely because ordinary people
lack reliable access to the media. The need to protect the aver-
MENOTTI v. CITY OF SEATTLE 6053
age citizen’s ability to be heard “is increasingly significant
now, when the extremely rich have an enormous variety of
privately-owned media through which to reach the public . . . .
At present, more democratic means of communication—
demonstrations in parks, bumper stickers, signs in the win-
dows of homes—must be jealously protected.” Id. The City
would place the demonstrators at the mercy of the media
industry. There is no way to guarantee that the message
protestors seek to convey would be heard in any recognizable
format. The First Amendment cannot allow a city to require
that subjugation.
C. Discretion
Even a content-neutral time, place, and manner restriction
will not survive First Amendment scrutiny if it allows for
unduly broad discretion on the part of the official charged
with enforcing the regulation. Thus, a regulation that restricts
speech must “contain adequate standards to guide the offi-
cial’s decision and render it subject to effective judicial
review.” Thomas v. Chicago Park District, 534 U.S. 316, 323
(2002). This rule applies even outside the traditional context
of licensing schemes. For example, in Board of Airport Com-
missioners v. Jews for Jesus, the Supreme Court held uncon-
stitutional a city ordinance that prohibited all “First
Amendment Activities” at Los Angeles International Airport,
even if the law were read to apply only to expressive activity
that was not “airport-related.” 482 U.S. 569, 575, 576 (1987).
The Court refused to validate a law that would
give LAX officials alone the power to decide in the
first instance whether a given activity is airport
related. Such a law that confers on police a virtually
unrestrained power to arrest and charge persons with
a violation of the resolution is unconstitutional
because the opportunity for abuse, especially where
a statute has received a virtually open-ended inter-
pretation, is self-evident.
6054 MENOTTI v. CITY OF SEATTLE
Id. (quotation marks omitted).
The First Amendment forbids even the opportunity for
abuse, not just policies that encourage preference for a
favored view. See City of Lakewood v. Plain Dealer Publ’g
Co., 486 U.S. 750, 757 (1988). If that opportunity is present,
the regulation “ ‘creates an unacceptable risk of the suppres-
sion of ideas.’ ” Kuba, 387 F.3d at 856 (quoting Foti v. City
of Menlo Park, 146 F.3d 629 (9th Cir. 1998)). Order No. 3,
however, clearly afforded officers the opportunity for abuse,
and was therefore constitutionally infirm.17 According to
Mayor Schell’s deposition testimony, the decision whether to
arrest peaceful, lawful protestors within the zone “would
depend on the judgment of the officers and people charged
with the responsibility of carrying out that order.”
Chief Stamper acknowledged that Order No. 3 and the
Operations Order interpreting it were “sufficiently vague that
it made it difficult from a working cop’s point of view to dis-
tinguish between who should and who should not be left out.”
Stamper himself “honestly [didn’t] know the answer” whether
peaceful protest was a “reasonable purpose” under the Order.
17
Relying on United States v. Griefen, 200 F.3d 1256, 1263 (9th Cir.
2000), the majority concludes that, because Order No. 3 was a lawful time,
place, and manner restriction, the discretion it afforded officers to allow
or deny entry into the zone “does not render Order No. 3 constitutionally
deficient.” Slip op. at 5998. Griefen, in which we upheld the closure of a
construction site to all but essential personnel, is inapposite, as the area
into which the plaintiffs sought entry to protest had temporarily lost its sta-
tus of public forum as a result of the construction activity. 200 F.3d at
1261 (“The immediate area of a construction zone is not an area that has
the attributes of a public forum, or even a limited public forum, where
people are entitled to exercise their rights of free speech.”). The 25-block
area in Seattle cordoned off by Order No. 3, on the other hand, affected
a quintessentially public forum—city streets and sidewalks—and therefore
the Order is subject to a higher degree of scrutiny. See supra at 6039; see
also Collins, 110 F.3d at 1371; ACLU of Nevada, 333 F.3d at 1098 (“The
ability to restrict speech in public forums . . . is ‘sharply circum-
scribed.’ ”).”
MENOTTI v. CITY OF SEATTLE 6055
And Officer Smith testified at his deposition that he and his
fellow officers were never given “a laundry list of activities
which would be deemed to be legitimate.” Instead, he was
told simply to apply “what a reasonable person would think
legitimate business is.” In sum, the plaintiffs presented evi-
dence that individuals with disfavored views—namely, any-
one wearing a “No WTO” sticker or button—were
systematically excluded from the zone, whether or not the
individual should have been allowed entry under an exception
to the Order.18 Furthermore, officers were permitted complete
discretion to determine who was a “protestor” and what was
a “reasonable purpose,” and therefore who would be
excluded. The majority’s conclusion that “there was no dan-
ger on the face of Order No. 3 that officers enforcing the
restricted zone could indiscriminately withhold permission to
speak,” slip op. at 5999, is flatly contrary to the evidence.
The majority concludes that under Chicago Park District,
the guidelines contained in the Operations Order were suffi-
ciently “specific and objective, and [did] not leave the deci-
sion to the whim of the administrator.” Id. at 6000 (quoting
534 U.S. at 324). But the discretion provided here is quite
different—and clearly broader—than the ordinance upheld in
Chicago Park District. That case involved a licensing scheme
that allowed the district to deny a permit
when the application is incomplete or contains a
material falsehood or misrepresentation; when the
applicant has damaged Park District property on
prior occasions and has not paid for the damage;
when a permit has been granted to an earlier appli-
cant for the same time and place; when the intended
use would present an unreasonable danger to the
health or safety of park users or Park District
employees; or when the applicant has violated the
terms of a prior permit.
18
See supra Part I.
6056 MENOTTI v. CITY OF SEATTLE
534 U.S. at 324. In light of these highly objective criteria, the
Supreme Court held that the disqualifying grounds were “rea-
sonably specific and objective” to defeat a claim of unbridled
discretion. Id. The Court has never held that a regulation
allowing officers to determine unilaterally what constitutes a
“reasonable purpose,” with no further elaboration on what
might be considered “other like type reasonable activity,” pro-
vides sufficient guidance.19 Even if Order No. 3 were in fact
a reasonable time, place, and manner restriction, it would
nonetheless fail to satisfy the First Amendment’s require-
ments foreclosing unbridled discretion in enforcement.20
III.
As for Menotti, Stedl, and Skove’s Fourth Amendment
claims, I would reverse the district court’s grant of summary
judgment. I agree that Menotti has presented sufficient evi-
dence to create a material factual dispute whether he impeded
pedestrians and whether he obstructed an officer in the perfor-
19
Relying on S. Oregon Barter Fair v. Jackson County, 372 F.3d 1128,
1139-41 (9th Cir. 2004), the majority suggests that we have in fact found
sufficient guidance in similarly-drafted statutes. Slip op. at 5998. But
clearly the determination of “a fee reasonably calculated to reimburse the
county for its reasonable and necessary costs,” S. Oregon Barter Fair, 372
F.3d at 1140, vests far less discretion in the enforcement officer than
determining what constitutes “other like type reasonable activity.” The
majority’s attempt to equate the two is not persuasive.
20
While noting the relevant facts, the majority concludes that they give
rise only to a challenge to Order No. 3 as applied to particular plaintiffs.
See slip op. at 5998-6000. The discretion conferred by Order No. 3, how-
ever, rendered it facially unconstitutional, Chicago Park District, 534 U.S.
at 323, and incapable of any valid application. Kuba, 387 F.3d at 856. In
Chicago Park District, the Court limited plaintiffs to an as-applied chal-
lenge only after determining that the challenged permitting scheme con-
tained “adequate standards to guide the official’s decision and render it
subject to effective judicial review.” 534 U.S. at 323. Because the stan-
dards provided police officers to guide enforcement of Order No. 3 were
not “reasonably specific and objective,” id. at 324, the majority incorrectly
confines the plaintiffs to an as-applied challenge here. Slip op. at 6007-08.
MENOTTI v. CITY OF SEATTLE 6057
mance of his duties. Whether the police officers had probable
cause to arrest Menotti turns on the resolution of these factual
issues. See, e.g., United States v. Valencia, 24 F.3d 1106,
1108 (9th Cir. 1994). I would also reverse the district court’s
summary judgment ruling against Stedl, because there is suf-
ficient evidence in the record to create a genuine factual dis-
pute whether the City had a policy of authorizing unlawful
searches and seizures of those who sought to express any
opposition to the WTO. See Oklahoma City v. Tuttle, 471
U.S. 808, 817 (1985). Finally, I agree with the majority that
Skove has alleged a violation of his Fourth Amendment rights
and defendant Smith is not entitled to qualified immunity.
* * * *
Because Order No. 3 was not narrowly tailored, did not
leave open ample alternative means of communication, and
afforded individual officers unbridled discretion in its
enforcement, it is facially unconstitutional. I would therefore
reverse the district court’s grant of summary judgment against
all Hankin plaintiffs, cf. slip op. at 6008 n.67, and against
Menotti, Sellman and Skove on their First Amendment
claims. I would also reverse the district court’s summary
judgment against Menotti, Stedl, and Skove as to their Fourth
Amendment claims.