Gary Edwards v. City of Coeur D'Alene Kootenai County Commissioners Pierce Clegg, Sheriff, in His Official Capacity as Sheriff of Kootenai County Steve Judy, in His Official Capacity as Mayor of Coeur D'Alene Nancy Sue Wallace, in Her Official Capacity as City Council President of Coeur D'Alene Dick White, Sheriff's Deputy, in His Official Capacity as Agent of Kootenai County Ben Wolffinger, Captain, in His Official Capacity as an Agent of Kootenai County's Sheriff's Department John Doe, Government Agent, in His Official Capacity Jane Doe, Government Agent, in Her Official Capacity

Citations: 262 F.3d 856; 2001 Daily Journal DAR 8939; 2001 Cal. Daily Op. Serv. 7270; 2001 U.S. App. LEXIS 18780Docket: 00-35537

Court: Court of Appeals for the Ninth Circuit; August 21, 2001; Federal Appellate Court

Combined Opinion SummaryCombined Opinion Original

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Gary Edwards filed a lawsuit against the City of Coeur d'Alene and various officials, challenging the constitutionality of Ordinance 2920(1)(D), which prohibits carrying signs with wooden or plastic handles during public assemblies. Edwards claimed this ordinance infringes on his First and Fourteenth Amendment rights to free speech. The district court ruled in favor of the City, deeming the ordinance a valid "time, place, and manner" restriction. 

The case arose after Edwards was arrested while protesting against an Aryan Nations march, specifically for refusing to surrender the wooden supports of his sign. He argued that the deputy sheriff's actions violated his rights under Idaho Code 18-705, which penalizes resisting law enforcement. In April 1999, Edwards sought both preliminary and permanent injunctive relief, fearing future violations of his constitutional rights due to the City's "zero tolerance for weapons" policy. The City did not respond to his motion, and on May 21, 1999, the district court granted a temporary injunction, stating that any enforcement of policies against carrying signs with handles must be legally enacted and applied fairly.

Ordinance 2920, enacted by the City, includes five subsections under Section 1. Subsection 1(A) prohibits the possession of weapons at parades or public assemblies, while 1(B) restricts weapons within 1,000 feet of such events unless kept in a private dwelling or business. Subsection 1(C) exempts members of U.S. Military Veteran's organizations from these restrictions. Subsection 1(D) regulates the carrying of placards or signs, banning the use of hard materials and affixing them to supports or City property. Subsection 1(E) defines key terms, and violations are classified as misdemeanors with penalties up to $300 or six months in prison.

Edwards filed an amended complaint on June 16, 1999, seeking preliminary injunctive relief against Section 1(D), fearing arrest for carrying a sign during protests. The urgency was heightened by a permit granted to the Aryan Nations for a parade on September 4, 1999. After amending his complaint to challenge the ordinance's constitutionality, the district court granted Edwards preliminary relief on August 17, 1999, noting that the veteran's exemption likely rendered Section 1(D) unconstitutional due to unequal treatment in First Amendment expression.

The City agreed to remove the veteran's exemption from Section 1(C). Edwards continued to argue the ordinance's unconstitutionality under the First and Fourteenth Amendments and sought summary judgment. On June 2, 2000, the district court denied his motion but granted summary judgment for the City, stating that removing the exemption remedied the ordinance's flaw. It ruled that while picketing is protected speech, Section 1(D) constitutes a valid time, place, and manner restriction, being content-neutral and serving a substantial government interest in public safety. The court also found the ordinance not unconstitutionally vague, leading to Edwards's appeal. 

The standard of review for the appeal is de novo, focusing on whether there are genuine issues of material fact and correct application of law.

Section 1(D) of Ordinance 2920 is not a valid time, place, and manner restriction on speech as it pertains to the First Amendment, which protects expressive activities such as peaceful picketing and parading. The ordinance bans the attachment of any supports to signs during parades and assemblies, thereby regulating expressive conduct that is constitutionally protected. For such regulations to be constitutional, they must meet three criteria: be content-neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative means of communication. 

The ordinance is deemed content-neutral as it does not target specific messages or viewpoints but applies uniformly to all sign-holders. The city's rationale for enacting the ordinance was centered on maintaining public safety during events, preventing potential injuries from sign handles, and not based on the content of the speech itself. The wording of the ordinance indicates a broad application to all types of supports for signs, affirming its neutrality. There is no evidence suggesting the ordinance was designed to favor any particular viewpoint, thus validating its content-neutral status.

The City must demonstrate that Ordinance 2920 serves a "substantial governmental interest" and is "narrowly tailored" to address the specific issue it aims to remedy. The district court identified the City's goal of banning rigid sign supports to prevent them being used as weapons against police and demonstrators, acknowledging this as a substantial interest in public safety. However, having a substantial interest does not suffice; the City must also provide "tangible evidence" that the speech restrictions are necessary for public safety.

The City’s argument to prohibit all nonlabor picketing due to its perceived propensity for violence is rejected, as such judgments should be made on an individual basis rather than through broad classifications. Previous cases, like United States v. Griefen, supported the government's interest in safety based on actual threats, while Project 80's, Inc. v. City of Pocatello found insufficient evidence to justify similar restrictions.

The City references Foti v. Menlo Park to argue that Ordinance 2920(1)(D) is narrowly tailored, but this reliance is deemed superficial. In Foti, the regulation on picket sign size was justified by traffic safety considerations, with evidence showing minimal impact on the protestors' ability to communicate. Therefore, the case is distinguished from the current situation, emphasizing that the circumstances and evidence supporting the City’s position in Ordinance 2920 differ significantly from those in Foti.

A sufficient connection between the city's interest in traffic safety and its regulation of picket signs was identified in the Foti court case; however, the current record lacks factual support for the City's assertion that Ordinance 2920's complete ban on sign supports is essential for preventing violence against police officers, paraders, and protestors. The City fails to provide examples of past incidents where sign handles were used violently by Coeur d'Alene citizens prior to the ordinance's enactment. The only relevant evidence is linked to Edwards's legal challenge regarding his arrest shortly before the ordinance was passed, at a time when no such law existed. Edwards's arrest was not for carrying a sign with a handle but for refusing to relinquish it. The district court ruled that the City could not enforce any policies against carrying signs with handles unless duly enacted. Ordinance 2920, enacted shortly after this ruling, appears aimed at legitimizing future arrests of similar individuals rather than addressing a public safety concern. The ordinance significantly restricts speech by preventing signholders from displaying messages clearly above crowds, complicating the display of larger signs, and undermining the traditional image of picketing. While the City is not required to use the least restrictive means, the availability of less burdensome alternatives, such as a Los Angeles ordinance that limits the dimensions of sign supports, raises questions about the reasonableness of the ordinance's fit between its objectives and means.

Ordinance 2920(1)(D) aims to enhance public safety during parades and gatherings by prohibiting materials that could serve as dangerous weapons while still allowing traditional picket signs. In contrast, a similar ordinance in Charlotte, North Carolina, permits the use of wooden sign supports with specific size and composition restrictions, effectively balancing safety and free speech. The ordinance's outright ban on all sign supports is deemed overly broad, significantly limiting free speech without adequate justification or empirical evidence to support its necessity for public safety. 

Additionally, the ordinance fails to provide ample alternative means of communication, as it restricts effective methods for individuals like Edwards to convey their messages in crowded and noisy environments typical of public assemblies. The city's claims that other forms of communication—such as leafleting or shouting—are sufficient lack credibility given the chaotic nature of these events. The conclusion drawn is that Ordinance 2920(1)(D) does not satisfy the second and third prongs of the time, place, and manner test, as it is not narrowly tailored to protect public safety and does not allow for effective communication.

The district court's summary judgment in favor of the City regarding the constitutionality of Ordinance 2920(1)(D), which prohibits sign supports, is reversed. The court found that the ban constitutes an invalid time, place, and manner restriction on free speech, as it is not narrowly tailored to the City's public safety interests and does not provide ample alternative channels for communication by picketers. Consequently, a permanent injunction against the enforcement of Section 1(D) is to be issued. Although Edwards also argued that the ordinance is void for vagueness, the court did not address this issue since the ruling was based on the first argument. Additionally, Edwards had previously dismissed claims against Kootenai County and amended his complaint to remove allegations regarding a "zero tolerance for weapons" policy. Ordinance 2920 effectively replaced Ordinance 2914, maintaining the same restrictions in Section 1(D). The document further notes the ordinance's severability and other provisions that are not contested in this appeal. Definitions for "parade" and "public assembly" are provided, highlighting their impact on traffic flow and pedestrian regulation.

"Law Enforcement Officer" encompasses various officials tasked with enforcing criminal, traffic, or penal laws, including court personnel, police officers, and their agents, as defined by Idaho Code. "Weapon" includes a broad range of items classified as dangerous, from firearms to everyday tools like bats and crowbars. 

Edwards filed a motion seeking relief from a June 2, 2000, order that granted summary judgment to the City, aiming to protest an Aryan Nations march with a traditional picket sign. The district court denied his motion. In his appeal, Edwards challenges Ordinance 2920, which replaced Ordinance 2914, focusing solely on the constitutionality of the newer ordinance. The court had previously struck an exemption for veterans that would have allowed them to carry signs with handles. Edwards also argued that the ordinance was not content neutral due to exemptions for certain weapons education programs, but the district court dismissed this claim, and he did not renew it on appeal.

Additionally, Edwards challenges an exemption in Section 1(C) of Ordinance 2920 for law enforcement and military personnel from restrictions on carrying weapons and sign supports. However, this argument was not raised in the lower court, leading to a waiver of the claim. The City is not obligated to demonstrate that Ordinance 2920 is the least restrictive means to achieve its goals. The City presented deposition testimony suggesting that demonstrators had misused their signs against officers at a parade, which may support the City's rationale for the sign-handle ban in terms of public safety, although no incidents were reported.

A flagpole is not subject to regulation under the ordinance, which only pertains to fixtures attached to signs and placards, not flags. While the City can regulate sign construction for public safety without waiting for injuries to occur, a complete ban on sign handles at parades and public assemblies is not justified, especially when flagpoles are permitted without size restrictions. Testimonies from City Police Captain Ken Timmons and Chief of Police Scates indicate that there have been no significant issues with weapons during parades prior to the ordinance's enactment, with Timmons noting no problems with officers being struck by demonstrators. Scates described the arrest of a protester for refusing to surrender a sign as "absolutely a farce." Additionally, a similar ordinance in Los Angeles, enacted due to police injuries from wooden sign poles, has withstood a First Amendment challenge, affirming its validity as a time, place, and manner regulation of expressive conduct.