Joseph Cuviello v. City of Vallejo ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH PATRICK CUVIELLO, No. 17-16948
Plaintiff-Appellant,
D.C. No.
v. 2:16-cv-02584-
KJM-KJN
CITY OF VALLEJO; M. CUTNICK, City
of Vallejo Police Officer; CLAUDIA
QUINTANA, City of Vallejo City OPINION
Attorney,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted February 8, 2019
San Francisco, California
Filed December 10, 2019
Before: Richard A. Paez and Marsha S. Berzon, Circuit
Judges, and Gary Feinerman, * District Judge.
Opinion by Judge Paez;
Dissent by Judge Feinerman
*
The Honorable Gary Feinerman, United States District Judge for
the Northern District of Illinois, sitting by designation.
2 CUVIELLO V. CITY OF VALLEJO
SUMMARY **
Civil Rights
The panel reversed the district court’s denial of
plaintiff’s motion for a preliminary injunction seeking to
enjoin the enforcement of the City of Vallejo’s requirement
that individuals obtain permits before they use sound-
amplifying devices within the City.
Plaintiff sought to use a bullhorn so that he could amplify
his voice during weekend protests of alleged animal
mistreatment at Six Flags Discovery Park in Vallejo, where
the noise of the park hampers his ability to spread his
message. Concerned that the City would enforce the permit
requirement against him, plaintiff filed this action,
contending that the permit requirement set forth in
Chapter 8.56 of the Vallejo Municipal Code violates the
First Amendment of the United States Constitution and the
Liberty of Speech Clause of the California Constitution.
The panel first held that the case was not moot even
though the City of Vallejo had recently amended
Chapter 8.56. The panel held that the gravamen of plaintiff’s
complaint and the irreparable harm that plaintiff alleged
remained unaffected by the amendments.
The panel held that district court abused its discretion by
concluding that plaintiff was unlikely to succeed on the
merits of his claim that the permit requirement imposed an
unconstitutional prior restraint on public speech. The panel
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CUVIELLO V. CITY OF VALLEJO 3
held that under California law, because Section 8.56.030
establishes a permit requirement in advance of public speech
and bans an instrumentality of speech absent a permit, it
imposes a prior restraint. The panel concluded that although
the permit requirement furthered the City’s significant
interests, it was not narrowly tailored because it covered
substantially more speech than necessary to achieve those
interests.
The panel held that the district court abused its discretion
by failing to recognize that a police officer’s threat of
criminal sanctions against plaintiff constituted irreparable
harm. The panel held that as long as Section 8.56.030
remains in effect, the threat of enforcement against plaintiff
will persist, chilling his exercise of free speech rights. Under
the circumstances, the panel held that plaintiff’s delay in
bringing his action did not significantly undercut his
showing of irreparable harm.
The panel held that the district court abused its discretion
in finding that the balance of equities tipped in the City’s
favor and that halting the enforcement of Chapter 8.56 would
not be in the public interest.
Dissenting, Judge Feinerman stated that plaintiff filed
his suit one year after he had last been threatened with
enforcement of the challenged ordinance, and he then waited
five months after filing suit to move for a preliminary
injunction. In Judge Feinerman’s view, this lengthy and
unjustified delay showed that plaintiff did not suffer
irreparable harm and therefore disentitled him to preliminary
injunctive relief.
4 CUVIELLO V. CITY OF VALLEJO
COUNSEL
Julie A. Murray (argued) and Scott L. Nelson, Public Citizen
Litigation Group, Washington, D.C., for Plaintiff-Appellant.
Katelyn M. Knight (argued), Deputy City Attorney; Claudia
Quintana, City Attorney; Office of the City Attorney,
Vallejo, California; Adam W. Hofmann and Josephine K.
Mason, Hanson Bridgett LLP, San Francisco, California; for
Defendants-Appellees.
OPINION
PAEZ, Circuit Judge:
The City of Vallejo requires individuals to obtain permits
before they use sound-amplifying devices within the City.
Joseph Cuviello seeks to use a bullhorn so that he can
amplify his voice during weekend protests of alleged animal
mistreatment at Six Flags Discovery Park (“Six Flags”) in
Vallejo, where the noise of the park hampers his ability to
spread his message. Concerned that the City would enforce
the permit requirement against him, Cuviello filed this
action, contending that the requirement violates the First
Amendment of the United States Constitution and the
Liberty of Speech Clause of the California Constitution.
Cuviello moved for a preliminary injunction to enjoin the
enforcement of the City’s permit system, which the district
court denied. We reverse and remand. 1
1
We have jurisdiction under 28 U.S.C. § 1292(a)(1).
CUVIELLO V. CITY OF VALLEJO 5
I.
A.
Cuviello protests abuse and mistreatment of animals by
circuses and other entertainment entities. For over a decade,
Cuviello has called attention to the treatment of animals kept
in captivity and used in attractions at Six Flags. Between
2006 and 2014, Cuviello regularly demonstrated at Six
Flags, displaying signs and video footage of animal
mistreatment as well as distributing information to patrons
as they entered the park. In May 2014, however, Park
Management Corporation—which owns Six Flags—filed a
lawsuit to enjoin demonstrators from protesting on its
property and eventually secured a permanent injunction to
that effect. 2 Since May 2014, Cuviello and his fellow
protestors have moved their demonstrations to the public
sidewalk along Fairground Drive, which borders Six Flags.
Because both the park entrance and the parking lot are
on private property and set back from the nearest public
sidewalk, Cuviello and his fellow advocates could no longer
physically approach patrons to distribute information and
discuss the treatment of animals at Six Flags. To overcome
the deafening sound of rollercoasters and other park
attractions from the sidewalk, Cuviello began using a
2
The California Court of Appeal recently held that the exterior,
unticketed portions of Six Flags are a public forum for expressive
activity. See Park Mgmt. Corp. v. In Def. of Animals, 248 Cal. Rptr. 3d
730, 744 (Cal. Ct. App. 2019). Park does not foreclose the possibility
that Cuviello can be prosecuted for failing to have a permit to use sound
amplification in these exterior portions of Six Flags and on the public
sidewalk outside the park.
6 CUVIELLO V. CITY OF VALLEJO
bullhorn to amplify his voice and increase the chances that
patrons could hear his message from inside their cars.
Chapter 8.56 of the Vallejo Municipal Code governs the
use of sound-amplifying or loudspeaking devices, including
bullhorns. Vallejo, Cal., Municipal Code, tit. 8, ch. 8.56.
When Cuviello first began using a bullhorn at protests in
2015, Section 8.56.101 of Chapter 8.56 provided:
It is unlawful for any person . . . to operate or
cause to be operated any sound amplifying or
loudspeaking device . . . upon any public
street, parkway, thoroughfare, or on privately
or publicly owned property, without first
obtaining a permit from the chief of police to
do so.
Vallejo, Cal., Municipal Code, § 8.56.101 (1997). To obtain
a permit to use a sound amplifying device, individuals were
required to complete and file an application with the chief of
police and pay a fee. The application required the
applicant’s name, contact information, and basic
information about the event for which the permit would be
used. Id. § 8.56.020. The chief of police was required to act
on a sound amplification permit within ten days of receiving
the application. Id. § 8.56.030.
After obtaining a sound amplification permit, the
applicant was required to comply with certain regulatory
conditions. The sound amplifying device could be used only
between 10 a.m. and sunset; the device could not be used
within 100 yards of a hospital, clinic, animal care facility,
school, church, courthouse, or public library; there could be
no amplification of profane, lewd, indecent, or slanderous
speech; and the device could not be operated beyond a
fifteen-watt level. Id. In addition to these restrictions on
CUVIELLO V. CITY OF VALLEJO 7
permit-holders, Chapter 7.84 of the Vallejo Municipal Code
prohibits as a public nuisance “any loud, unnecessary, and
unusual noise which disturbs the peace or quiet of any
neighborhood or which causes discomfort or annoyance to
any reasonable person of normal sensitiveness residing in the
area.” Vallejo, Cal., Municipal Code, § 7.84.010 (1997).
Cuviello first became aware of the permit requirement
and related restrictions in June 2015, when a fellow
demonstrator relayed that a police officer had told him
bullhorns could not be used without a permit. Cuviello
approached the officer to discuss his use of a bullhorn, and
the officer showed him the text of Chapter 8.56. Cuviello
did not use his bullhorn for the rest of that day.
In future demonstrations, Cuviello tried to comply with
Chapter 8.56’s permit and other requirements. He did not
apply for a permit for a July 4th protest, to avoid putting Six
Flags and the City of Vallejo on notice of the demonstration.
He did apply for a permit for a demonstration that occurred
a few days later but never received a reply from the Vallejo
Police Department. Because he feared being arrested,
Cuviello did not use a bullhorn at either demonstration.
Cuviello conducted his own legal research over the
subsequent months and concluded that Chapter 8.56—and in
particular, Chapter 8.56’s permit requirement—was an
unconstitutional prior restraint on speech. In September
2015, he e-mailed his findings to Claudia Quintana, the City
Attorney of Vallejo, and informed her that he would no
longer comply with Chapter 8.56’s permit requirements. In
response, City Attorney Quintana justified Chapter 8.56’s
requirements as permissible time, place, and manner
restrictions. Unpersuaded, Cuviello again began using his
bullhorn at demonstrations outside Six Flags without a
permit.
8 CUVIELLO V. CITY OF VALLEJO
Initially, Cuviello’s bullhorn use went unchallenged.
But at a demonstration in October 2015, a City of Vallejo
police officer approached Cuviello and informed him that he
could not use his bullhorn without a permit. Cuviello asked
if he would be arrested for continuing to use the bullhorn,
and the officer told him that he would only confiscate the
bullhorn “as evidence of a crime.” Following this warning,
Cuviello did not use his bullhorn at any further
demonstrations at Six Flags.
B.
In October 2016, Cuviello filed this action under
42 U.S.C. § 1983, alleging violations of the First and
Fourteenth Amendments to the U.S. Constitution and
various California constitutional and statutory free speech
protections. See U.S. Const. amend. I, XIV; Cal. Const. art
1, § 2a; Cal. Civ. Code § 52.1. Cuviello alleged that Chapter
8.56’s permit system was unconstitutional, both on its face
and as applied to his actions.
Cuviello challenged the facial validity of Chapter 8.56
on three grounds: first, the permit requirement constituted an
impermissible prior restraint on speech in a public forum;
second, Chapter 8.56 was unconstitutionally vague because
it did not set a deadline to apply for a permit or define
“amplifying devices and loudspeakers”; and third, the
condition that permit-holders refrain from amplifying
profane, lewd, indecent, or slanderous speech vested
improper discretion in police officers to regulate speech
based on its content. Cuviello also contended that the City
of Vallejo’s threatened enforcement of the permit
requirement against him constituted a prior restraint.
In March 2017, Cuviello moved for a preliminary
injunction to enjoin enforcement of Chapter 8.56’s permit
CUVIELLO V. CITY OF VALLEJO 9
system. The district court denied the preliminary injunction,
concluding that Cuviello had not established a likelihood of
success on the merits of any of his claims. The district court
rejected Cuviello’s arguments that Chapter 8.56 was an
improper prior restraint, void for vagueness, or
impermissibly content-based, and instead held that Chapter
8.56’s requirements could be justified as permissible time,
place, and manner restrictions on speech in a public forum.
The district court further noted that even if Cuviello was
likely to succeed on the merits, he had not shown a risk of
irreparable harm, that the balance of hardships tipped in his
favor, or that the public interest favored a preliminary
injunction. Cuviello timely appealed.
After both parties filed their appellate briefs, the City of
Vallejo amended Chapter 8.56. The City Council added
legislative findings justifying the regulation of sound
amplification devices, see Vallejo, Cal., Municipal Code
§ 8.56.010 (2016), and moved the permit requirement to
Section 8.56.030. Section 8.56.030 now states that any
person who wishes to use a sound amplifying device “upon
any public street, parkway, thoroughfare, or on privately or
publicly owned property” must obtain a permit from the City
of Vallejo Chief of Police. See id. §§ 8.56.030, 8.56.090.
The new section also eliminates the permit-fee requirement,
defines “sound amplifying devices,” shortens the processing
time for permit approval to three days, includes a process to
appeal the denial of a permit, and eliminates the prohibition
on amplifying profane, lewd, indecent, or slanderous speech.
Id. §§ 8.56.020, 8.56.080, 8.56.100.
Although Cuviello no longer argues that Chapter 8.56’s
permit system is vague or impermissibly content-based, he
continues to argue that Section 8.56.030’s permit
requirement imposes a prior restraint on speech in a public
10 CUVIELLO V. CITY OF VALLEJO
forum that cannot be justified as a permissible time, place,
and manner restriction. 3
II.
In light of the City of Vallejo’s recent amendments to
Chapter 8.56, we first consider whether Cuviello’s case is
moot. Article III of the United States Constitution limits our
jurisdiction to cases or controversies. See Bayer v. Neiman
Marcus Grp., Inc., 861 F.3d 853, 861 (9th Cir. 2017). “The
doctrine of mootness, which is embedded in Article III’s
case or controversy requirement, requires that an actual,
ongoing controversy exist at all stages of federal court
proceedings.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081,
1086 (9th Cir. 2011). When subsequent events resolve the
dispute, such that no live issues remain or the parties lack a
legally cognizable interest in the outcome, a case becomes
moot. Id. at 1086–87.
To determine whether a legislative change has rendered
a controversy moot, we ask “whether the new ordinance is
sufficiently similar to the [previously challenged] ordinance
that it is permissible to say that the challenged conduct
continues.” Ne. Fla. Chapter of Associated Gen.
Contractors v. City of Jacksonville, 508 U.S. 656, 662 n.3
(1993). If the amended ordinance threatens to harm a
plaintiff in the same fundamental way—even if to a lesser
degree—the plaintiff will still have a live claim for
prospective relief. Id. at 662. We are particularly wary of
legislative changes made in direct response to litigation. See
Bd. of Trustees of the Glazing Health and Welfare Trust v.
Chambers, No. 16-15588, 2019 WL 5797212, at *3 (9th Cir.
3
In keeping with the amendments to Chapter 8.56, we refer to
Section 8.56.030 when discussing the permit requirement.
CUVIELLO V. CITY OF VALLEJO 11
Nov. 7, 2019) (“[I]n determining whether a case is moot, we
should presume that the repeal, amendment, or expiration of
legislation will render an action challenging the legislation
moot, unless there is a reasonable expectation that the
legislative body will reenact the challenged provision or one
similar to it.”).
In his complaint and motion for a preliminary injunction,
Cuviello argued that the permit requirement burdened his
state and federal constitutional rights to use a bullhorn. Even
after the City amended Chapter 8.56, it retained the permit
requirement in Section 8.56.030. See Vallejo, Cal.,
Municipal Code § 8.56.030. The only meaningful difference
between Section 8.56.030 and the prior version of the permit
requirement is the elimination of any fee. See id. Although
this lessens the asserted harm caused by the permit
requirement, it does not eliminate it. Cf. Ne. Fla. Chapter of
Associated Gen. Contractors, 508 U.S. at 662. The
gravamen of Cuviello’s complaint and the irreparable harm
that Cuviello alleges remain unaffected by the amendments
to Chapter 8.56. Thus, we conclude that Cuviello’s appeal
is not moot and proceed to the merits. 4
4
Although Cuviello’s central claim against Section 8.56.030
presents an actual, ongoing controversy, his initial challenges to other
aspects of Chapter 8.56 are now moot, and he does not appeal the district
court’s order on those grounds. Amended Chapter 8.56 defines the term
that Cuviello had alleged was impermissibly vague, see Vallejo, Cal.,
Municipal Code § 8.56.020(A), and no longer retains the provision
Cuviello had alleged was unconstitutionally content-based. Cuviello
abandons those arguments in his supplemental briefs, and we do not
address them.
12 CUVIELLO V. CITY OF VALLEJO
III.
The United States Constitution and California
Constitution protect bullhorns, and other sound-amplifying
devices, as “indispensable instruments” of public speech.
Saia v. People of State of New York, 334 U.S. 558, 561
(1948); Wollam v. City of Palm Springs, 379 P.2d 481, 485
(Cal. 1963). In a crowded park or bustling intersection,
where a single voice is easily drowned out, volume enables
speech. See Wollam, 379 P.2d at 486. A restriction on
volume, then, can effectively function as a restriction on
speech. Saia, 334 U.S. at 561–62; Wollam, 379 P.2d at 486
(“The right of free speech necessarily embodies the means
used for its dissemination because the right is worthless in
the absence of a meaningful method of its expression.”). But
there are good reasons for regulating sound-amplifying
devices. As federal and California courts have recognized,
these devices can produce noise that is unpleasant and,
certainly, “[u]nrestrained use throughout a municipality of
all sound amplifying devices would be intolerable.” Kovacs
v. Cooper, 336 U.S. 77, 81 (1949); see also Reeves v.
McConn, 631 F.2d 377, 382–83 (5th Cir. 1980); Wollam,
379 P.2d at 485. Nonetheless, municipalities must ensure
that even a well-intentioned restriction does not give way to
suppression of speech. See Saia, 334 U.S. at 562; Wollam,
379 P.2d at 485. With these principles in mind, we turn to
Cuviello’s motion for a preliminary injunction.
To prevail on a motion for a preliminary injunction,
Cuviello must show that: (1) he is likely to succeed on the
merits on his state or federal claims; (2) he is likely to suffer
irreparable harm in the absence of preliminary relief; (3) the
balance of equities tips in his favor; and (4) a preliminary
injunction is in the public interest. See Winter v. Nat. Res.
Defense Council, 555 U.S. 7, 20 (2008).
CUVIELLO V. CITY OF VALLEJO 13
We review for abuse of discretion the district court’s
ultimate decision to grant or deny a preliminary injunction.
See Sw. Voter Registration Educ. Project v. Shelley,
344 F.3d 914, 918 (9th Cir. 2003). “The district court’s
interpretation of the underlying legal principles, however, is
subject to de novo review and a district court abuses its
discretion when it makes an error of law.” Id.
A.
We first review the district court’s conclusion that
Cuviello is unlikely to succeed on the merits of his state and
federal constitutional claims. His primary argument is that
Section 8.56.030’s permit requirement imposes an
unconstitutional prior restraint on public speech in violation
of the California Constitution’s Liberty of Speech Clause
and the First Amendment to the United States Constitution.
Because Cuviello raises both federal and state
constitutional claims, we must clarify the scope of our
analysis. “It is well-established that this court should avoid
adjudication of federal constitutional claims when
alternative state grounds are available . . . . even when the
alternative ground is one of state constitutional law.” Hewitt
v. Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991) (citations and
internal quotation marks omitted). “Where the state
constitutional provisions are co-extensive with related
federal constitutional provisions, we may decide the federal
constitutional claims because that analysis will also decide
the state constitutional claims.” Vernon v. City of Los
Angeles, 27 F.3d 1385, 1392 (9th Cir. 1994). “[W]here the
state provisions offer more expansive protection than the
federal constitution, we must address the state constitutional
claims in order to avoid unnecessary consideration of the
federal constitutional claims.” Id.
14 CUVIELLO V. CITY OF VALLEJO
As we have recognized, the California Constitution’s
protection of free speech can be broader in some respects
than the protection provided by the First Amendment. See
Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 856 (9th Cir. 2004).
The First Amendment’s protection of public speech applies
with greatest force in a traditional public forum such as a
public sidewalk, see Pleasant Grove City v. Summum,
555 U.S. 460, 469 (2009), but the California Constitution
provides such protection to any public speech that is not
“basically incompatible with the normal activity of a
particular place at a particular time.” Kuba, 387 F.3d at 857
(quoting Carreras v. City of Anaheim, 768 F.2d 1039, 1045
(9th Cir. 1985)).
With regard to prior restraints, both the California
Constitution’s Liberty of Speech Clause and the First
Amendment recognize that “[a] permitting requirement is a
prior restraint on speech and therefore bears a ‘heavy
presumption’ against its constitutionality.” 5 Berger v. City
of Seattle, 569 F.3d 1029, 1037 (9th Cir. 2009) (citing
Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 130
(1992)); Dulaney v. Mun. Court, 520 P.2d 1, 5–6 (Cal.
1974); EWAP, Inc. v. City of Los Angeles, 158 Cal. Rptr.
579, 582 (Cal. Ct. App. 1979). “Both the procedural hurdle
of filling out and submitting a written application, and the
temporal hurdle of waiting for the permit to be granted may
5
While the prior restraint doctrine developed in response to laws
that outright prohibited speech prior to publication, see generally Near
v. State of Minnesota, 283 U.S. 697 (1931), the doctrine encompasses
laws that require a permit in advance of exercising speech rights. See
Forsyth Cty., 505 U.S. at 130–31; Berger, 569 F.3d at 1037. Permit
systems are accorded the same presumption of unconstitutionality as a
ban on speech prior to publication. See Forsyth Cty., 505 U.S. at 130–
31.
CUVIELLO V. CITY OF VALLEJO 15
discourage potential speakers.” Grossman v. City of
Portland, 33 F.3d 1200, 1206 (9th Cir. 1994).
Nonetheless, both the Liberty of Speech Clause and the
First Amendment allow municipalities to promulgate permit
systems that place reasonable time, place, and manner
restrictions on speech in a public forum. See Forsyth Cty.,
505 U.S. at 130; Long Beach Area Peace Network v. City of
Long Beach, 574 F.3d 1011, 1023–24 (9th Cir. 2009); L.A.
Alliance for Survival v. City of Los Angeles, 993 P.2d 334,
362, 365 (Cal. 2000); EWAP, Inc., 158 Cal. Rptr. at 585. The
standard for evaluating a reasonable time, place, and manner
restriction is the same under California and federal law. See
Dulaney, 520 P.2d at 6 (noting that California’s standard for
evaluating a time, place, and manner restriction in a public
forum is “fashioned from a long line of United States
Supreme Court cases”); accord Int’l Soc’y for Krishna
Consciousness v. City of Los Angeles, 227 P.3d 395, 402
(Cal. 2010). To pass constitutional muster, a permit system
must satisfy four criteria. Long Beach Area Peace Network,
574 F.3d at 1023–24; L.A. Alliance for Survival, 993 P.2d at
340. First, the permit system must not delegate overly broad
licensing discretion to a government official. See Long
Beach Area Peace Network, 574 F.3d at 1024; Int’l Soc’y for
Krishna Consciousness, 227 P.2d at 401–402. Second, the
system must not be based on the content of the message.
Long Beach Area Peace Network, 574 F.3d at 1023; L.A.
Alliance for Survival, 993 P.2d at 340. Third, the system
must be narrowly tailored to serve a significant
governmental interest. Long Beach Area Peace Network,
574 F.3d at 1023; L.A. Alliance for Survival, 993 P.2d at 340.
Finally, the system must leave open ample alternatives for
communication. Long Beach Area Peace Network, 574 F.3d
at 1023; L.A. Alliance for Survival, 993 P.2d at 340.
16 CUVIELLO V. CITY OF VALLEJO
Cuviello argues that Section 8.56.030’s permit
requirement imposes a prior restraint on public speech in
violation of both the California and United States
Constitutions. To evaluate his likelihood of success on the
merits, we address Cuviello’s state constitutional claim,
rather than his First Amendment claim, because the
California Constitution’s protection of public speech sweeps
more broadly than the First Amendment’s protection. See
Kuba, 387 F.3d at 857–58. Under California law, because
Section 8.56.030 establishes a permit requirement in
advance of public speech and bans an instrumentality of
speech absent a permit, it imposes a prior restraint. 6 See
Dulaney, 520 P.2d at 5–6; EWAP, Inc., 158 Cal. Rptr. at 582.
Thus, we must evaluate whether Section 8.56.030’s permit
requirement constitutes a reasonable time, place, and manner
restriction. See L.A. Alliance for Survival, 993 P.2d at 340.
In accordance with California law, we look to federal
standards to resolve this inquiry. See Kuba, 387 F.3d at 857–
58.
Here, the only question is whether the district court erred
in its analysis of the third factor: whether Section 8.56.030
6
Although Chapter 8.56 as amended no longer requires a permit
application fee, the ordinance still imposes a prior restraint. See
Watchtower Bible & Tract Soc’y of New York, Inc. v. Village of Stratton,
536 U.S. 150, 166 (2002) (“Even if the issuance of permits by the
mayor’s office is a ministerial task that is performed promptly and at no
cost to the applicant, a law requiring a permit to engage in such speech
constitutes a dramatic departure from our national heritage and
constitutional tradition.”).
CUVIELLO V. CITY OF VALLEJO 17
is narrowly tailored to serve a significant government
interest. 7
1.
We first evaluate whether the district court erred in
finding that the City’s permit requirement serves a
significant government interest. As we noted above,
“[u]nrestrained use throughout a municipality of all sound
amplifying devices would be intolerable.” Kovacs, 336 U.S.
at 81. Municipalities have “a substantial interest in
protecting its citizens from unwelcome noise.” Ward v.
Rock Against Racism, 491 U.S. 781, 796 (1989) (internal
citation omitted). This interest is at its zenith in residential
areas, where citizens have substantial privacy interests. See
Berger, 569 F.3d at 1039. Furthermore, where public speech
can affect traffic safety, municipalities have “a significant
governmental interest in . . . ensuring the safety of
pedestrians and drivers alike.” Kuba, 387 F.3d at 858. The
City of Vallejo argues that Section 8.56.030 furthers these
interests. 8
7
Regarding the first factor, neither party argues that Chapter 8.56
gives the chief of police overly broad discretion; Chapter 8.56 delegates
virtually no discretion to the chief of police to deny a permit. See
Vallejo, Cal., Municipal Code § 8.56.080. As to the second factor, after
the recent amendments to Chapter 8.56, Cuviello has abandoned his
argument that it is content-based. Finally, regarding the fourth factor,
Cuviello does not challenge the district court’s conclusion that Chapter
8.56 leaves open ample alternative channels for communication. We
therefore do not address any of these issues.
8
Indeed, with the recent amendments, the City of Vallejo has further
clarified that Chapter 8.56 is meant to promote “the health, welfare, and
safety of the inhabitants of the city” by regulating sound-amplifying
18 CUVIELLO V. CITY OF VALLEJO
Although Cuviello acknowledges the City’s significant
interests in preventing noise disturbances that could threaten
public health, safety, or welfare, he nonetheless points to our
statement in Kuba that “merely invoking [significant]
interests . . . is insufficient” to meet the government’s burden
of proof to justify a regulation that burdens free speech.
387 F.3d at 859. Rather, in Kuba, we held that “[t]he
government must also show that the proposed
communicative activity endangers those [significant]
interests.” Id. While a local government bears the burden
of proffering a significant interest for a time, place, and
manner restriction, this “does not require a city, before
enacting such an ordinance, to conduct new studies or
produce evidence independent of that already generated by
other cities.” City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 51–52 (1986). As it has long been accepted that
sound amplifying devices can endanger public health, safety,
and welfare, the City of Vallejo did not need to produce new
evidence justifying its interests in regulating them. See, e.g.,
Ward, 491 U.S. at 796–97; Kovacs, 336 U.S. at 81–82.
Accordingly, the district court did not abuse its discretion by
holding that the permit requirement furthered the City of
Vallejo’s significant interests.
2.
We next address whether the district court erred by
concluding that the permit requirement is narrowly tailored.
We are guided by three considerations when evaluating
whether a time, place, and manner regulation is narrowly
tailored. See Long Beach Area Peace Network, 574 F.3d
at 1024. First, we consider whether the regulation
devices, which the City notes can create traffic hazards and disturb
public peace. See Vallejo, Cal., Municipal Code § 8.56.010.
CUVIELLO V. CITY OF VALLEJO 19
“achieve[s] its ends without restricting substantially more
speech than necessary.” Id. In particular, an ordinance’s
expansive language can signal that the municipality has
burdened substantially more speech than effectively
advances its goals. Id. at 1025. Second, we look to whether
there are “obvious alternatives that would achieve the same
objectives with less restriction on speech.” Id. A
municipality need not justify its ordinance as the least
restrictive alternative, see Ward, 491 U.S. at 798, but “an
assessment of alternatives can still bear on the
reasonableness of the tailoring.” Long Beach Area Peace
Network, 574 F.3d at 1025 (internal quotation marks
omitted). Finally, if the challenged regulation is not
necessary to serve the municipality’s interests in the instant
circumstances, we examine whether a generic regulation is
nonetheless needed to regulate other speakers’ expressive
activity. Id.
As to the first consideration, although we recognize a
city’s need to implement permit requirements for some
speech in public fora, we have noted several ways in which
these requirements can burden substantially more speech
than necessary. A permit requirement burdens more speech
than necessary when it exceeds the scope of the
municipality’s significant interests. For this reason, we
invalidated a City of Long Beach ordinance that required a
permit at least twenty-four hours in advance of any
spontaneous assembly; although the city claimed the
requirement was necessary to control traffic flow, we found
it excessive because the regulation required notice
“irrespective of whether there is any possibility that the
event will interfere with traffic flow.” Id. at 1038.
Conversely, in Rosenbaum v. City and County of San
Francisco, we approved a permit requirement for amplified
speech in excess of volume levels prohibited by the city’s
20 CUVIELLO V. CITY OF VALLEJO
nuisance code. 484 F.3d 1142, 1147, 1158 (9th Cir. 2007).
In that case, the permit requirement was tailored to advance
the city’s interest in protecting the public from disturbances
caused by excessive noise. Id. at 1160–61.
We have also held that a permit system burdens
substantially more speech than necessary when it does not
distinguish between speech by individuals and large groups.
In Santa Monica Food Not Bombs v. City of Santa Monica,
we recognized that a city may have an interest in promoting
safe and convenient use of public areas by implementing a
permit system. 450 F.3d 1022, 1038 (9th Cir. 2006).
Nonetheless, “[w]ithout a provision limiting the permitting
requirements to larger groups, or some other provision
tailoring the regulation to events that realistically present
serious traffic, safety, and competing use concerns . . . a
permitting ordinance is insufficiently narrowly tailored to
withstand time, place, and manner scrutiny.” Id. at 1039. As
we noted in Berger, “we and almost every other circuit to
have considered the issue have refused to uphold registration
requirements that apply to individual speakers or small
groups in a public forum.” 569 F.3d at 1039; see also
Grossman, 33 F.3d at 1206 (finding a permit requirement for
group gatherings in a park insufficiently tailored for not
distinguishing between small and large groups).
Beyond the example of permit systems, we have found
other time, place, and manner restrictions to be insufficiently
tailored where they are “geographically overinclusive.”
Comite de Jornaleros de Redondo Beach v. City of Redondo
Beach, 657 F.3d 936, 949 (9th Cir. 2011). In Comite de
Jornaleros de Redondo Beach, we held that an ordinance
barring individual solicitation on all streets and highways
was not narrowly tailored to further the city’s interest in
preventing traffic problems. Id. While we noted that the city
CUVIELLO V. CITY OF VALLEJO 21
might be able to justify the ban with regard to major streets
and medians, “[b]y applying the Ordinance citywide to all
streets, alleys, and sidewalks, the City has burdened
substantially more solicitation than is reasonably necessary
to achieve its purpose.” Id.; see also Grayned v. City of
Rockford, 408 U.S. 104, 119 (1972) (finding an anti-noise
ordinance not to be geographically overinclusive because it
only applied within 150 feet of a school building).
Regarding our second consideration—whether there are
obvious alternatives that could achieve the same aims with
lesser impact on speech—we have approved alternatives
more narrowly tailored than blanket permit requirements for
public speech. In particular, we have favored systems that
direct enforcement of existing rules against those who
actually exhibit unwanted behavior rather than require all
speakers to seek approval from the municipality prior to
engaging in speech. See Berger, 569 F.3d at 1044. “[B]y
punishing only actual wrongdoers, rather than screening
potential speakers[,]” a municipality can achieve its goal of
protecting citizens from disorderly or disruptive expressive
activities without penalizing speakers who do respect the
municipality’s rules. Id. (citing Riley v. Nat’l Fed’n of the
Blind of N.C., Inc., 487 U.S. 781, 795 (1988)); see also
generally Vill. of Schaumburg v. Citizens for a Better Env’t,
444 U.S. 620 (1980); Schneider v. State of New Jersey,
308 U.S. 147 (1939).
On its face, Section 8.56.030 contains many of the
features we have identified as burdening more speech than
necessary. Although the City of Vallejo argues that Section
8.56.030 furthers its interests in preventing noise that
disturbs the peace and creates traffic dangers, Section
8.56.030 requires a permit for any use of a sound-amplifying
device at any volume by any person at any location—
22 CUVIELLO V. CITY OF VALLEJO
without any specifications or limitations that may tailor the
permit requirement to situations involving the most serious
risk to public peace or traffic safety. Vallejo, Cal.,
Municipal Code § 8.56.030; see also Santa Monica Food
Not Bombs, 450 F.3d at 1039. Hence, Section 8.56.030
applies with the same force to an individual and to a rally of
one-hundred people; to the use of a device in an empty
parking lot and at the busiest intersection; to the use of a
device at a child’s weekend birthday party in an already
noisy park and to the use of a device by demonstrators next
to a hospital at 2 a.m.; and so on. Without any limitations
that tailor the permit requirement to circumstances where
public peace and traffic safety are actually at risk, Section
8.56.030 covers substantially more speech than necessary to
achieve its ends. 9
Section 8.56.030’s broad sweep is more apparent when
applied to the facts of this case. Cuviello wishes to use a
bullhorn in demonstrations on the public sidewalk next to
Six Flags. This is not an area of the city where people come
to seek peace and quietude or to avoid distraction. Rather,
this is already a noisy area, where patrons flock in droves
and scream on various thrill rides. Amidst all the noise, the
sound of one bullhorn likely would not cause an additional
disturbance to traffic safety or public peace. It is difficult to
see how requiring prior notice of Cuviello’s bullhorn use in
this area would advance the City’s expressed interests in
promoting public peace or traffic safety. The City has
offered no evidence to the contrary.
9
The City of Vallejo urges us to look to Rosenbaum and conclude
that Section 8.56.030 is narrowly tailored, but the permit requirement at
issue in Rosenbaum was far more limited than the one at issue here. See
484 F.3d at 1147.
CUVIELLO V. CITY OF VALLEJO 23
The district court’s narrow tailoring analysis failed to
recognize the breadth of the permit requirement. The district
court did not apply the tailoring guidelines we outlined for
permit requirements in Long Beach Area Peace Network,
Santa Monica Food Not Bombs, and Comite de Jornaleros
de Redondo Beach. Instead, the district court pointed to
Chapter 8.56’s conditions for using a sound-amplifying
device—which attach when the permit is approved—as
evidence that the permit requirement is narrowly tailored.
Vallejo, Cal., Municipal Code § 8.56.060. Treating the
conditions of use as interchangeable with the permit
requirement misunderstands the injury caused by the permit
requirement. See Berger, 569 F.3d at 1038. The permit
requirement is “offensive—not only to the values protected
by the First Amendment, but to the very notion of a free
society—that in the context of everyday public discourse a
citizen must first inform the government of her desire to
speak . . . and then obtain a permit to do so.” Id. at 1037
(quoting Watchtower Bible & Tract Soc’y of N.Y., 536 U.S.
at 165–66 (2002)). By disregarding the injury caused by the
permit requirement as a prior restraint on speech and failing
to apply our law on the acceptable scope of such permit
requirements, the district court erred in its narrow tailoring
analysis. 10 The district court thus abused its discretion in
concluding that Cuviello was unlikely to succeed on the
merits of his state constitutional claim.
10
Cuviello argues that the district court also erred in its narrow
tailoring analysis by disregarding the City of Vallejo’s prohibitions on
noises that create a nuisance as an obvious alternative that could achieve
the City of Vallejo’s interests with less impact on speech. We do not
address this argument as we find that the district court abused its
discretion in failing to recognize that Chapter 8.56 burdens substantially
more speech than necessary.
24 CUVIELLO V. CITY OF VALLEJO
B.
Our inquiry does not end at the first element of the
preliminary injunction test. Even where a plaintiff
demonstrates a likelihood of success on the merits of a free
speech claim, he “must also demonstrate that he is likely to
suffer irreparable harm in the absence of a preliminary
injunction, and that the balance of equities and public
interest tip in his favor.” 11 Klein v. City of San Clemente,
584 F.3d 1196, 1207 (9th Cir. 2009). The latter three
elements do not collapse into the merits question. See DISH
Network Corp. v. F.C.C., 653 F.3d 771, 776 (9th Cir. 2011).
Therefore, although Cuviello’s colorable speech claim
“certainly raises the specter of irreparable harm,” id., we
must still examine whether the district court abused its
discretion by concluding that Cuviello failed to show a risk
of irreparable harm.
Prior restraints on speech present some of the “most
serious and the least tolerable infringement” on free speech
rights. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559
(1976); accord Molinaro v. Molinaro, 245 Cal. Rptr. 3d 402,
408 (Cal. Ct. App. 2019). Whereas a criminal penalty on a
type of speech attaches after the speech is uttered—and thus
the threat of penalty creates a chilling effect—a prior
restraint stifles speech before it can take place, freezing it
altogether. See Nebraska Press Ass’n, 427 U.S. at 559.
Even if that freeze is only temporary, the loss or threatened
infringement upon free speech rights “for even minimal
11
Although we evaluated the likelihood of success on the merits
primarily with reference to Cuviello’s state constitutional claim, we still
employ federal standards to review the district court’s denial of a
preliminary injunction. See Int’l Franchise Ass’n, Inc. v. City of Seattle,
803 F.3d 389, 399 (9th Cir. 2015) (evaluating all Winter factors where
likelihood of the merits turned on both federal and state law claims).
CUVIELLO V. CITY OF VALLEJO 25
periods of time[] unquestionably constitutes irreparable
injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
We are acutely aware of the special injury caused by
permit systems as a form of prior restraint. Permit systems
represent a departure from our tradition of public discourse
by requiring a citizen to seek approval from the government
to engage in speech. See Berger, 569 F.3d at 1037. “Both
the procedural hurdle of filling out and submitting a written
application, and the temporal hurdle of waiting for the permit
to be granted may discourage potential speakers.”
Grossman, 33 F.3d at 1206. The procedural hurdle may
discourage speakers who fear advance retaliation, want their
speech to escape government notice for a time, or otherwise
value preserving their privacy in advance of the actual
speech. Berger, 569 F.3d at 1038. The temporal hurdle
eliminates the possibility of spontaneous speech, which may
disproportionately burden political speech that must respond
to changing current events. Id.; see also Shuttlesworth v.
City of Birmingham, 394 U.S. 147, 163 (1969) (Harlan, J.,
concurring) (“[T]iming is of the essence in politics . . . .
[and] it is often necessary to have one’s voice heard
promptly, if it is to be considered at all.”).
Here, not only has Cuviello raised a colorable speech
claim, but he has shown that the City’s permit requirement
violated and continues to infringe on his free speech rights.
After being warned that he could not use his bullhorn
without a permit, Cuviello stopped using his bullhorn for a
time, impacting the effectiveness of his speech in front of a
noisy theme park. Thereafter, Cuviello was forced to either
suffer this infringement or surrender his ability to speak
without providing advance notice of his identity, instead
notifying the City of Vallejo of his intended speech
activities. When Cuviello did voluntarily surrender his
26 CUVIELLO V. CITY OF VALLEJO
anonymity and applied for a permit, the temporal hurdle
deprived him of his ability to speak spontaneously, and thus
he ultimately could not use his bullhorn to speak. After
deciding that he would not suffer these infringements on his
speech—and thus used his bullhorn without applying for a
permit—a police officer warned him that if he continued to
use it, the bullhorn would be confiscated as evidence of a
crime. Although Chapter 8.56 does not designate a penalty
for violating Section 8.56.030, the general provisions of the
City of Vallejo provide that the failure to comply with any
code requirements constitutes either a misdemeanor or
infraction, subject to potential criminal penalties. Vallejo,
Cal., Municipal Code § 1.12.010. After receiving this threat,
Cuviello ceased using his bullhorn, a protected instrument of
speech. See Saia, 344 U.S. at 561. As long as Section
8.56.030 remains in effect, the threat of enforcement against
Cuviello will persist, chilling his exercise of free speech
rights. For these reasons, Cuviello has shown irreparable
harm.
In concluding that Cuviello had not established
irreparable harm, the district court discounted the injury
caused by the threat of enforcement against Cuviello. The
court reasoned that because no enforcement action under
Chapter 8.56 had been taken against Cuviello or similarly
situated individuals, Cuviello had not shown a likelihood of
irreparable harm. This reasoning conflicts with established
precedent. An ordinance need not be enforced against a
speaker to pose a threat to his free speech rights. See, e.g.,
Elrod, 427 U.S. at 373–74. Cuviello continues to restrain his
own speech under the threat that Chapter 8.56 will be
enforced against him. This chill on his free speech rights—
even if it results from a threat of enforcement rather than
actual enforcement—constitutes irreparable harm. See id.
CUVIELLO V. CITY OF VALLEJO 27
at 373–74; see also Am. Beverage Ass’n v. City & Cty. of San
Francisco, 916 F.3d 749, 757–58 (9th Cir. 2019).
The City of Vallejo argues, and the dissent agrees, that
Cuviello’s showing of irreparable harm is undercut by his
delay in filing the present lawsuit and moving for a
preliminary injunction. But there are several reasons that
suggest Cuviello’s tardiness should not weigh heavily here.
First, Cuviello’s delay is only one factor among the many
that we consider in evaluating whether a plaintiff is likely to
suffer irreparable harm absent interim relief. It is generally
recognized that a “long delay before seeking a preliminary
injunction implies a lack of urgency and irreparable harm,”
Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d
1374, 1377 (9th Cir. 1985), but “[d]elay by itself is not a
determinative factor in whether the grant of interim relief is
just and proper.” Aguayo ex rel. N.L.R.B. v. Tomco
Carburetor Co., 853 F.2d 744, 750 (9th Cir. 1988).
“Usually, delay is but a single factor to consider in
evaluating irreparable injury”; indeed, “courts are loath to
withhold relief solely on that ground.” Arc of Cal. v.
Douglas, 757 F.3d 975, (9th Cir. 2014) (emphasis added)
(quoting Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d
1211, 1214 (9th Cir. 1984)).
Second, although a failure to seek speedy relief can
imply the lack of a need for such relief, “such tardiness is not
particularly probative in the context of ongoing, worsening
injuries.” Douglas, 757 F.3d at 990. Cuviello did not suffer
a discrete, excisable injury. Each instance in which Cuviello
restrained his own speech contributed to the constitutional
injury he suffered. He continued to protest after learning he
would need a permit, but altered his behavior in response to
the requirement.
28 CUVIELLO V. CITY OF VALLEJO
Third, our cases do not require a strong showing of
irreparable harm for constitutional injuries. In situations
where the plaintiff’s “First Amendment rights [are] being
chilled daily, the need for immediate injunctive relief
without further delay is, in fact, a direct corollary of the
matter’s great importance.” Sanders Cty. Republican Cent.
Comm. v. Bullock, 698 F.3d 741, 748 (9th Cir. 2012). That
Cuviello will suffer irreparable harm absent relief “is
demonstrated by a long line of precedent establishing that
the loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable
injury.” Id. (alterations and quotations omitted); see also
McDermott v. Ampersand Publishing, LLC, 593 F.3d 950,
957 (9th Cir. 2010).
Finally, when a plaintiff is pro se, we are also generous
in the assumptions we draw about his litigation of the case.
Cf. Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir.
2017); Morris v. Tehama, 795 F.2d 791, 795 (9th Cir. 1986).
In the seventeen months preceding Cuviello’s motion for
interim relief, he was observing and documenting the
enforcement of Chapter 8.56. Contrary to the dissent’s
views, we are not surprised that a pro se litigant might take
more time than would a lawyer to build his case before
moving for relief. Obtaining injunctive relief from a federal
court is not an easy task, even for a skilled attorney.
Cuviello’s pro se status provides one additional reason to
discount the probative value of his delay.
Under these circumstances, Cuviello’s delay in filing his
complaint and seeking preliminary injunctive relief does not
significantly undercut his showing of irreparable harm. We
thus conclude that the district court abused its discretion by
failing to recognize a police officer’s threat of criminal
sanctions against Cuviello as irreparable harm.
CUVIELLO V. CITY OF VALLEJO 29
C.
We next consider whether the district court abused its
discretion in concluding that the balance of equities does not
tip in Cuviello’s favor. The chilling of a plaintiff’s free
speech rights—especially where there is a threat of criminal
sanctions—favors a preliminary injunction. See Doe,
772 F.3d at 583. To overcome this balance in Cuviello’s
favor, there must be record evidence that a preliminary
injunction will seriously hamper significant governmental
interests. See id. Here, as previously discussed, the permit
requirement has chilled Cuviello’s free speech rights and
will continue to do so absent preliminary injunctive relief.
The City of Vallejo has not pointed to any record evidence
that suggests that it will suffer hardship from the issuance of
a preliminary injunction.
In finding that the balance of equities did not tip in
Cuviello’s favor, the district court reasoned that Cuviello
had not established a likelihood of success on his claims. As
previously discussed, this is not so. Cuviello has shown
likelihood of success on the merits as well as irreparable
harm stemming from the threat of Chapter 8.56’s
enforcement against him.
The district court concluded that the City of Vallejo
would be hampered in its ability to regulate the use of sound
amplifying devices. But the court pointed to no evidence to
support this speculation, and indeed the City of Vallejo
submitted no such evidence. To overcome the balance of
equities in Cuviello’s favor, the City of Vallejo was required
to present evidence that its significant interests would be
seriously hampered. As the City did not meet its burden, the
district court abused its discretion in finding that the balance
of equities tipped in the City’s favor.
30 CUVIELLO V. CITY OF VALLEJO
D.
Finally, we evaluate whether the district court abused its
discretion by concluding that a preliminary injunction
halting the enforcement of Chapter 8.56 would not be in the
public interest. We have “consistently recognized the
significant public interest in upholding [free speech]
principles.” Assoc. Press v. Otter, 682 F.3d 821, 826 (9th
Cir. 2012) (internal quotation marks omitted); see also Doe,
772 F.3d at 583 (“[T]he public interest favors the exercise of
[free speech] rights.”). Because Cuviello has raised a
colorable free speech claim and demonstrated that Chapter
8.56 causes irreparable harm, it is well within the public
interest to issue a preliminary injunction.
IV.
For the reasons stated above, we reverse the district
court’s denial of Cuviello’s motion for a preliminary
injunction and remand for further proceedings consistent
with this opinion.
REVERSED and REMANDED.
FEINERMAN, District Judge, dissenting:
Joseph Cuviello filed this suit one year after he had last
been threatened with enforcement of the challenged
ordinance, and he then waited five months after filing suit to
move for a preliminary injunction. In my view, this lengthy
and unjustified delay shows that Cuviello did not suffer
irreparable harm and therefore disentitles him to preliminary
injunctive relief.
CUVIELLO V. CITY OF VALLEJO 31
“A preliminary injunction is sought upon the theory that
there is an urgent need for speedy action to protect the
plaintiff’s rights. By sleeping on [his] rights[,] a plaintiff
demonstrates the lack of need for speedy action . . . .” Lydo
Enters., Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th
Cir. 1984) (internal quotation marks omitted, ellipses in
original); see also Oakland Tribune, Inc. v. Chronicle Publ’g
Co., 762 F.2d 1374, 1377 (9th Cir. 1985) (“Plaintiff’s long
delay before seeking a preliminary injunction implies a lack
of urgency and irreparable harm.”). Applying this principle,
we held in Garcia v. Google, Inc., 786 F.3d 733 (9th Cir.
2015) (en banc), that a plaintiff who waited some five
months after a YouTube video was posted to seek to enjoin
Google to take it down had not demonstrated irreparable
harm. Id. at 746. The same result obtains for Cuviello’s
seventeen-month delay. See Wreal, LLC v. Amazon.com,
Inc., 840 F.3d 1244, 1248 (11th Cir. 2016) (affirming the
district court’s ruling that the plaintiff failed to demonstrate
irreparable harm given its unexplained five-month delay in
seeking a preliminary injunction); Novus Franchising, Inc.
v. Dawson, 725 F.3d 885, 895 (8th Cir. 2013) (holding that
the plaintiff’s “failure to seek injunctive relief for a period of
seventeen months … vitiates much of the force of [its]
allegations of irreparable harm”) (internal quotation marks
omitted); High Tech Med. Instrumentation, Inc. v. New
Image Indus., Inc., 49 F.3d 1551, 1557 (Fed. Cir. 1995)
(“Absent a good explanation, . . . , 17 months is a substantial
period of delay that militates against the issuance of a
preliminary injunction by demonstrating that there is no
apparent urgency to the request for injunctive relief.”); T.J.
Smith & Nephew Ltd. v. Consol. Med. Equip., Inc., 821 F.2d
646, 648 (Fed. Cir. 1987) (same for a fifteen-month delay);
Citibank, N.A. v. Citytrust, 756 F.2d 273, 276–77 (2d Cir.
1985) (same for a nine-month delay); cf. Arc of Cal. v.
Douglas, 757 F.3d 975, 990–91 (9th Cir. 2014) (holding that
32 CUVIELLO V. CITY OF VALLEJO
a two-year delay did not defeat the plaintiff’s showing of
irreparable harm because “the magnitude of the potential
harm bec[ame] apparent gradually,” as the plaintiff suffered
“various cuts in compensation, enacted over a period of time
and having a cumulative impact,” thus “undermining any
inference that the plaintiff was sleeping on its rights”)
(internal quotation marks omitted).
The majority excuses Cuviello’s delay on the ground that
he brought his case pro se. But Cuviello was no ordinary pro
se litigant, as his efforts in the district court and on appeal
showed him to be a skilled and formidable advocate. In any
event, as we often recognize, pro se litigants are not exempt
from the ordinary rules governing the conduct of litigation.
See Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1140 (9th Cir.
2013) (“A district court may dismiss a pro se complaint for
failure to allege compliance with the [Federal Tort Claims
Act’s] administrative exhaustion requirement if it clearly
appears that the deficiency cannot be overcome by
amendment.”); Bias v. Moynihan, 508 F.3d 1212, 1219 (9th
Cir. 2007) (“The hazards which beset a layman when he
seeks to represent himself are obvious. He who proceeds pro
se with full knowledge and understanding of the risks does
so with no greater rights than a litigant represented by a
lawyer, and the trial court is under no obligation to become
an ‘advocate’ for or to assist and guide the pro se layman
through the trial thicket.”) (internal quotation marks
omitted); Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080,
1087 (9th Cir. 2002) (“Zivkovic argues that his untimely
demand for a jury trial should be excused because he filed
his complaint pro se and was unaware of the requirements of
Rule 38(b). However, Zivkovic’s good faith mistake as to
the deadline for demanding a jury trial establishes no more
than inadvertence, which is not a sufficient basis to grant
relief from an untimely jury demand.”); Jacobsen v. Filler,
CUVIELLO V. CITY OF VALLEJO 33
790 F.2d 1362, 1364 (9th Cir. 1986) (“[P]ro se litigants in
the ordinary civil case should not be treated more favorably
than parties with attorneys of record.”). The cases cited by
the majority—one articulating the unexceptional proposition
that pro se pleadings are construed liberally, Hayes v. Idaho
Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017), and the
other declining to impose sanctions on a pro se litigant “who
act[ed] in apparent good faith,” Morris v. Tehama Cty.,
795 F.2d 791, 795 (9th Cir. 1986)—provide no basis to
excuse Cuviello’s seventeen-month delay.
The majority next submits that Cuviello “was observing
and documenting the enforcement of” the challenged
ordinance and “tak[ing] more time than would a lawyer to
build his case” during the seventeen-month delay. The point
fails to persuade. Cuviello’s pro se complaint alleges that on
June 20, 2015, more than sixteen months before he filed suit,
[Cuviello] utilized an electric bullhorn at the
Six Flags demonstration and was
subsequently told by a fellow activist … that
Vallejo police officer Garcia[] had informed
him that he was not allowed to use a bullhorn
without first obtaining a permit for such use.
...
Because [Cuviello] did not want to get
arrested he did not utilize the bullhorn further
on June 20, 2015 . . . .
The complaint then alleges that “[Cuviello] did not utilize a
bullhorn at the July 18, 2015 demonstration for fear of being
arrested.” And the complaint then alleges that on October
31, 2015, exactly a year before he filed suit:
34 CUVIELLO V. CITY OF VALLEJO
[Cuviello] again attended a demonstration at
Six Flags in Vallejo and utilized a bullhorn
and a large screen television, . . . . [Cuviello]
used the bullhorn and television for
approximately 20 minutes in the presence of
Defendant Officers M. Cutnick and Doe
before Defendant Officers approached
[Cuviello] and asked him if he had a permit
to use the bullhorn. [Cuviello] replied he did
not. Defendant Officer Cutnick told
[Cuviello] without a permit he could not use
the bullhorn. [Cuviello] asked Defendant
Officer Cutnick if he would be arrested if he
continued to use the bullhorn and Defendant
Officer Cutnick replied no, but he would
confiscate the bullhorn as evidence of a
crime. (some capitalization omitted).
Cuviello received the message loud and clear: In the two
demonstrations he attended in the ensuing months, he “did
not bring his bullhorn based on the October 31, 2015 threat
from Defendant Officer Cutnick[] that he would confiscate
any bullhorn used at the demonstration without a permit.”
(some capitalization omitted).
So, Cuviello was warned second-hand in June 2015 that
the ordinance did not allow him to use a bullhorn without a
permit; he took that warning to heart by stopping his
bullhorn use at the June 2015 demonstration and not using a
bullhorn at the July 2015 demonstration; he was told by a
police officer at the October 31, 2015 demonstration that his
bullhorn would be confiscated “as evidence of a crime” if he
continued to use it without obtaining a permit; and he then
did not bring a bullhorn to the next two demonstrations based
on the threat he received at the October 31, 2015
CUVIELLO V. CITY OF VALLEJO 35
demonstration. It is perfectly clear that on October 31, 2015,
a year before he filed suit and seventeen months before he
moved for a preliminary injunction, Cuviello had the
complete factual predicate of his suit, as he knew all he
needed to know about how Vallejo would enforce the
ordinance. And Cuviello’s complaint acknowledges that he
then had the legal predicate in hand as well: “Between July
4, 2015 and September 11, 2015[, Cuviello] researched the
applicable caselaw regarding the legality of using a bullhorn
for free speech and believed that [the ordinance] was
unconstitutional . . . .” Yet, as noted, Cuviello waited until
October 31, 2016 to file suit, and then waited an additional
five months after that to move for a preliminary injunction.
The record is clear: Cuviello’s seventeen-month delay
from when he received first-hand the officer’s warning that
his bullhorn would be confiscated as evidence of a crime to
his moving for a preliminary injunction cannot be chalked
up to a reasonable delay by a pro se litigant taking care to
build his case. The only plausible explanation, rather, is that
Cuviello did not see “an urgent need for speedy action to
protect [his] rights.” Lydo Enters., 745 F.2d at 1213 (internal
quotation marks omitted). Cuviello’s lack of urgency was
eminently reasonable, as he and his fellow demonstrators
were still able to convey their message to prospective Six
Flags patrons from the sidewalk adjoining the park with
signs and video footage of animal mistreatment displayed on
the large screen television. (It bears mention parenthetically
that there is even less of an urgent need for preliminary
injunctive relief now, as the California Court of Appeal ruled
in June 2019, in a case in which Cuviello is a party, that the
California Constitution protects his right to demonstrate in
the exterior, unticketed areas of the Six Flags park, which
consist of the ticket windows, a parking lot, and the
walkways that connect them, and where he would have even
36 CUVIELLO V. CITY OF VALLEJO
less of a need for a bullhorn to reach his intended audience.
See Park Mgmt. Corp. v. In Def. of Animals, 248 Cal. Rptr.
3d 730 (Cal. Ct. App. 2019), review denied (Sept. 25, 2019).)
Because Cuviello did not act with the urgency the law
expects of those seeking preliminary injunctive relief, we
should not set aside as an abuse of discretion the district
court’s denial of such relief.