Comite De Jornaleros De Redondo Beach v. City of Redondo Beach , 657 F.3d 936 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COMITE DE JORNALEROS DE 
REDONDO BEACH; NATIONAL DAY
LABORER ORGANIZING NETWORK, No. 06-55750
Plaintiffs-Appellees,
 D.C. No.
v. CV-04-09396-CBM
CITY OF REDONDO BEACH,
Defendant-Appellant.

COMITE DE JORNALEROS DE 
REDONDO BEACH; NATIONAL DAY
No. 06-56869
LABORER ORGANIZING NETWORK,
Plaintiffs-Appellees,
 D.C. No.
CV-04-09396-CBM
v.
OPINION
CITY OF REDONDO BEACH,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted
March 21, 2011–San Francisco, California
Filed September 16, 2011
Before: Alex Kozinski, Chief Judge, Sidney R. Thomas,
Susan P. Graber, Ronald M. Gould, Marsha S. Berzon,
Jay S. Bybee, Consuelo M. Callahan, Carlos T. Bea,
Milan D. Smith, Jr., Sandra S. Ikuta, and N. Randy Smith,
Circuit Judges.
17633
17634 COMITE DE JORNALEROS v. REDONDO BEACH
Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Ronald M. Gould;
Special Concurrence by Judge Milan D. Smith, Jr.;
Dissent by Chief Judge Alex Kozinski
COMITE DE JORNALEROS v. REDONDO BEACH 17637
COUNSEL
Michael W. Webb (argued), Office of the City Attorney,
Redondo Beach, California; Eugene P. Ramirez and Julie M.
Fleming, Manning & Marder, Kass, Ellrod, Ramirez LLP,
Los Angeles, California, for the defendant-appellant.
Thomas A. Saenz (argued), Cynthia A. Valenzuela, and Kris-
tina Campbell, Mexican American Legal Defense and Educa-
tional Fund, Los Angeles, California; Robert Rubin and Philip
Hwang, Lawyers' Committee for Civil Rights, San Francisco,
California; Angela L. Padilla and Alexei Klestoff, Morrison
& Foerster LLP, San Francisco, California, for the plaintiffs-
appellees.
Jeffrey V. Dunn and Marc S. Ehrlich, Best Best & Krieger
LLP, Irvine, California, for the amicus curiae League of Cali-
fornia Cities.
Paul J. Orfanedes and James F. Peterson, Judicial Watch, Inc.,
Washington, D.C., for the amicus curiae Judicial Watch, Inc.
Monica M. Ramirez and Lucas Guttentag, American Civil
Liberties Union Foundation, Immigrants' Rights Project, San
Francisco, California, for the amicus curiae Professor Abel
Valenzuela, Jr.
Rebecca Smith, National Employment Law Project, Seattle,
Washington; Haeyong Yoon, National Employment Law
Project, New York, New York, for the amici curiae National
Domestic Worker Alliance, National Employment Law Proj-
ect, Restaurant Opportunities Center United, and Right to the
City.
17638 COMITE DE JORNALEROS v. REDONDO BEACH
OPINION
M. SMITH, Circuit Judge:
A pair of day-laborer organizations challenge a City of
Redondo Beach (Redondo Beach or the City) anti-solicitation
ordinance that bars individuals from ™stand[ing] on a street or
highway and solicit[ing], or attempt[ing] to solicit, employ-
ment, business, or contributions from an occupant of any
motor vehicle.∫ Redondo Beach Municipal Code ß 3-
7.1601(a) (the Ordinance). We agree with the day laborers
that the Ordinance is a facially unconstitutional restriction on
speech.
Our analysis is guided by certain well-established princi-
ples of First Amendment law. In public places such as streets
and sidewalks, ™the State [may] enforce a content-based
exclusion∫ on speech if the ™regulation is necessary to serve
a compelling state interest and that it is narrowly drawn to
achieve that end.∫ Perry Educ. Ass'n v. Perry Local Educa-
tors' Ass'n, 460 U.S. 37, 45 (1983). For content-neutral regu-
lations, the State may limit ™the time, place, and manner of
expression∫ if the regulations are ™narrowly tailored to serve
a significant government interest, and leave open ample alter-
native channels of communication.∫ Id.
We conclude that the Ordinance fails to satisfy the narrow
tailoring element of the Supreme Court's ™time, place, and
manner∫ test. The Ordinance is not narrowly tailored because
it regulates significantly more speech than is necessary to
achieve the City's purpose of improving traffic safety and
traffic flow at two major Redondo Beach intersections, and
the City could have achieved these goals through less restric-
tive measures, such as the enforcement of existing traffic laws
and regulations. Because the Ordinance does not constitute a
reasonable regulation of the time, place, or manner of speak-
ing, it is facially unconstitutional.
COMITE DE JORNALEROS v. REDONDO BEACH 17639
I. FACTS AND PRIOR PROCEEDINGS
A. Factual Background
In September 1986, we upheld a Phoenix ordinance that
provided: ™ `No person shall stand on a street or highway and
solicit, or attempt to solicit, employment, business or contri-
butions from the occupants of any vehicle.' ∫ ACORN v. City
of Phoenix, 798 F.2d 1260, 1262 (9th Cir. 1986) (quoting
Phoenix City Ordinance ß 36-101.01 (1984)). The Phoenix
ordinance was designed to prevent members of the political
action group ACORN ™from accosting the drivers and passen-
gers of automobiles temporarily stopped at red traffic lights at
city street intersections to solicit contributions to its cause.∫
Id. at 1261. We upheld the ordinance as ™a reasonable time,
place, and manner regulation which preserves the city streets
for safe and peaceful use by motorists when the streets are
open to vehicle traffic.∫ Id. at 1273.
Six months later, the Redondo Beach City Attorney recom-
mended that the Redondo Beach City Council adopt a nearly
identical ordinance (the sole material difference being that the
proposed ordinance defined ™street or highway∫ as including
sidewalks, alleys, and other such locations, consistent with
California law, see, e.g., Cal. Veh. Code ßß 110, 555). In a
memorandum that accompanied the proposed ordinance, the
City Attorney noted: ™the City has had extreme difficulties
with persons soliciting employment from the sidewalks along
the Artesia corridor over the last several years. Recent devel-
opments have brought to the surface the problems with per-
son[s] using medians and other portions of the street to sell
certain products. [∂ ] There can be little question that traffic
and safety hazards occur by this practice.∫
In a declaration filed with the district court, a City police
officer added that the Redondo Beach Police Department had
™received numerous complaints from business owners and
residents of the surrounding areas∫ near ™the intersection of
17640 COMITE DE JORNALEROS v. REDONDO BEACH
Artesia Boulevard and Felton Lane, and . . . the intersection
of Manhattan Beach Boulevard and Inglewood Avenue.∫ The
police received complaints that the ™day laborers who congre-
gate at the subject intersections . . . interrupt the flow of traf-
fic while they contact employers from the City sidewalks and
streets[,] . . . commit acts of vandalism, litter, [and] urinate
near the businesses∫ in the area.
The City adopted the proposed ordinance in May 1987.
Following additional complaints about ™the recurring gather-
ing of day laborers along Artesia Boulevard,∫ who ™congre-
gated on the sidewalks during the rush hours to obtain
temporary employment,∫ in 1989 the City added an additional
subsection to the Ordinance prohibiting drivers from stopping
in traffic to hire laborers. The Ordinance now reads in full:
(a) It shall be unlawful for any person to stand on
a street or highway and solicit, or attempt to solicit,
employment, business, or contributions from an
occupant of any motor vehicle. For purposes of this
section, ™street or highway∫ shall mean all of that
area dedicated to public use for public street pur-
poses and shall include, but not be limited to, road-
ways, parkways, medians, alleys, sidewalks, curbs,
and public ways.
(b) It shall be unlawful for any person to stop,
park or stand a motor vehicle on a street or highway
from which any occupant attempts to hire or hires
for employment another person or persons.
Redondo Beach Municipal Code ß 3-7.1601.
In October 2004, the City initiated the ™Day Labor Enforce-
ment Project.∫ Over the course of two successive mornings,
undercover officers posing as potential employers arrested
thirty-five day laborers ™for soliciting from stopped vehicles∫
under the Ordinance. Two weeks later, the police arrested
COMITE DE JORNALEROS v. REDONDO BEACH 17641
another twenty-one day laborers under the Ordinance. Two
weeks after that, four day laborers were arrested under sub-
section (a) of the Ordinance, and a contractor was arrested
under subsection (b) of the Ordinance. Arrested persons either
posted $100 bail and were released, or were sent to court,
entered guilty pleas, sentenced to three years probation and a
180-day suspended sentence, assessed a $314 booking fee,
and enjoined from coming within 150 yards of the place they
were arrested.
B. Procedural Background
Shortly after the City's 2004 enforcement efforts con-
cluded, the Comite de Jornaleros de Redondo Beach (Comite)
and National Day Laborer Organizing Network (NDLON)
filed this lawsuit under 42 U.S.C. ß 1983 and 28 U.S.C. ß 2201.1
Comite and NDLON (collectively, the Plaintiffs) alleged that
the Ordinance is a facially unconstitutional restriction on day
laborers' and other persons' First Amendment rights.
The district court agreed with the Plaintiffs, and issued a
preliminary injunction barring the City from enforcing the
Ordinance, which we affirmed on appeal. Comite de Jor-
naleros de Redondo Beach v. City of Redondo Beach, 127 F.
App'x 994 (9th Cir. 2005) (unpublished memorandum dispo-
sition). After the parties filed cross-motions for summary
judgment, the district court issued final judgment for the
Plaintiffs. Comite I, 475 F. Supp. 2d at 970. The court's order
permanently enjoined the City from enforcing the Ordinance,
and required the City to rescind any ™fines, penalties, or
records of infractions∫ issued under the Ordinance (though the
court later stayed enforcement of the latter part of its order.).
Id. The court then awarded attorneys' fees to the Plaintiffs.
1
™Comite identifies itself as `an unincorporated association comprised
of day laborers who seek to defend their rights and address the difficulties
that they face in seeking lawful employment as day workers.' NDLON
identifies itself as `a nationwide coalition of day laborers and the agencies
that work with day laborers.' ∫ Comite I, 475 F. Supp. 2d at 955.
17642 COMITE DE JORNALEROS v. REDONDO BEACH
Believing itself bound by ACORN, a merits panel of our
court reversed the district court's judgment, Comite de Jor-
naleros de Redondo Beach v. City of Redondo Beach (Comite
II), 607 F.3d 1178 (9th Cir. 2010), but we ordered that the
case be reheard en banc, 623 F.3d 1054 (9th Cir. 2010)
(order). We now affirm the district court and overrule
ACORN, but only to the extent it is inconsistent with our en
banc decision in this case.
II. JURISDICTION AND STANDARD OF REVIEW
We have appellate jurisdiction under 28 U.S.C. ß 1291. We
review the district court's grant of summary judgment de
novo. Berger v. City of Seattle, 569 F.3d 1029, 1035, 1049
(9th Cir. 2009) (en banc). In addressing the parties' cross-
motions for summary judgment, we must draw all reasonable
inferences in favor of the non-moving party, and determine
whether a genuine issue of material fact precludes entry of
summary judgment. Fed. R. Civ. P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250, 255 (1986).
The City challenges the Plaintiffs' Article III standing to
pursue this action. We adopt the three-judge panel's analysis
as our own:
Redondo Beach makes the threshold argument
that Comite and NDLON lack standing to challenge
the ordinance. To have standing under Article III, a
plaintiff must have suffered an ™injury in fact,∫
defined as ™an invasion of a legally protected interest
which is (a) concrete and particularized, and (b)
actual or imminent.∫ Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992) (citations and internal quo-
tation marks omitted). There also must be a causal
connection between the injury and the defendant's
conduct, and the injury must be redressable by a
favorable decision. Id. at 561. Here Redondo Beach
COMITE DE JORNALEROS v. REDONDO BEACH 17643
argues that Comite and NDLON fail to satisfy the
Article III injury-in-fact requirement.
An organization may establish a sufficient injury
in fact if it substantiates by affidavit or other specific
evidence that a challenged statute or policy frustrates
the organization's goals and requires the organiza-
tion ™to expend resources in representing clients they
otherwise would spend in other ways.∫ El Rescate
Legal Servs., Inc. v. Executive Office of Immigration
Review, 959 F.2d 742, 748 (9th Cir. 1992); see also
Fair Housing of Marin v. Combs, 285 F.3d 899,
904-05 (9th Cir. 2002). But ™standing must be estab-
lished independent of the lawsuit filed by the plain-
tiff.∫ Walker v. City of Lakewood, 272 F.3d 1114,
1124 n.3 (9th Cir. 2001).
NDLON has met the burden to establish its stand-
ing as an organization. The record contains declara-
tions of NDLON officials that enforcement of the
Redondo Beach ordinance has frustrated NDLON's
mission ™to strengthen and expand the work of local
day laborer organizing groups∫ because it ™has pre-
vented day laborers from making their availability to
work known in the City of Redondo Beach.∫ More-
over, the ordinance has discouraged both employees
and employers from participating in hiring transac-
tions. Redondo Beach has offered no evidence to
dispute these claims. NDLON also has offered
uncontradicted evidence that enforcement of the
ordinance has forced it to divert resources, indepen-
dent of expenses for this litigation, that it would have
spent in other ways. NDLON's west coast coordina-
tor testified that she met with workers at the intersec-
tions targeted by Redondo Beach to discuss
enforcement of the ordinance almost daily from the
end of October 2004 until mid-December 2004, and
weekly thereafter through June 2005. She also testi-
17644 COMITE DE JORNALEROS v. REDONDO BEACH
fied that she went to the police station to assist day
laborers who had been arrested. NDLON's national
coordinator testified that the time and resources
spent in assisting day laborers during their arrests
and meeting with workers about the status of the
ordinance would have otherwise been expended
toward NDLON's core organizing activities. In sum,
NDLON has established a sufficient organizational
injury for standing purposes. See El Rescate, 959
F.2d at 748.
Because there is a causal connection between
Redondo Beach's ordinance and NDLON's injury,
and NDLON's injury would be redressable by a
favorable decision, we conclude that NDLON has
standing to bring this appeal. Accordingly, we have
jurisdiction over this facial challenge irrespective of
Comite's standing. ™Where the legal issues on appeal
are fairly raised by one plaintiff [who] had standing
to bring the suit, the court need not consider the
standing of the other plaintiffs.∫ Planned Parent-
hood of Idaho, Inc. v. Wasden, 376 F.3d 908, 918
(9th Cir. 2004) (alteration in original) (internal quo-
tation marks omitted). Therefore, we do not address
the parties' remaining standing arguments, including
Redondo Beach's evidentiary arguments.
Comite II, 607 F.3d at 1182-83.
We also reject the City's belated contention that the Plain-
tiffs failed to allege standing adequately in their complaint.
We exercise our discretion to conform the pleadings to the
evidence submitted during summary judgment, which, as
described supra, is adequate to establish standing in this case.
See 28 U.S.C. ß 1653 (™Defective allegations of jurisdiction
may be amended, upon terms, in the trial or appellate
courts.∫); see also Chandler v. Miller, 520 U.S. 305, 313 n.2
COMITE DE JORNALEROS v. REDONDO BEACH 17645
(1997) (amending pleadings under 28 U.S.C. ß 1653 to reject
mootness argument).
III. DISCUSSION
A. Applicable Principles of First Amendment Law
Certain general principles of First Amendment law guide
our analysis. ™When the Government restricts speech, the
Government bears the burden of proving the constitutionality
of its actions.∫ United States v. Playboy Entm't Grp., Inc., 529
U.S. 803, 816 (2000). In a facial challenge to a law's validity
under the First Amendment, the ™law may be invalidated as
overbroad if `a substantial number of its applications are
unconstitutional, judged in relation to the statute's plainly
legitimate sweep.' ∫ United States v. Stevens, 130 S. Ct. 1577,
1587 (2010) (quoting Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n.6 (2008)). The party
challenging the law need not necessarily introduce admissible
evidence of overbreadth, but generally must at least ™describe
the instances of arguable overbreadth of the contested law.∫
Wash. State Grange, 552 U.S. at 449 n.6. The overbreadth
doctrine exists ™out of concern that the threat of enforcement
of an overbroad law may deter or `chill' constitutionally pro-
tected speech–especially when the overbroad statute imposes
criminal sanctions.∫ Virginia v. Hicks, 539 U.S. 113, 119
(2003).
Because of the Court's concern about chilling protected
speech, ™[i]n the First Amendment context attacks have been
permitted `on overly broad statutes with no requirement that
the person making the attack demonstrate that his own con-
duct could not be regulated by a statute drawn with the requi-
site narrow specificity.' ∫ Parker v. Levy, 417 U.S. 733, 759
(1974) (quoting Dombrowski v. Pfister, 380 U.S. 479, 486
(1965)). ™Where . . . a statute imposes a direct restriction on
protected First Amendment activity, and where the defect in
the statute is that the means chosen to accomplish the State's
17646 COMITE DE JORNALEROS v. REDONDO BEACH
objectives are too imprecise, so that in all its applications the
statute creates an unnecessary risk of chilling free speech, the
statute is properly subject to facial attack.∫ Sec'y of State of
Md. v. Joseph H. Munson Co., 467 U.S. 947, 967-68 (1984)
(footnote omitted); see also Members of the City Council of
L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 n.19 (1984)
(™[W]here the statute unquestionably attaches sanctions to
protected conduct, the likelihood that the statute will deter
that conduct is ordinarily sufficiently great to justify an over-
breadth attack.∫).
[1] Solicitation constitutes protected expression under the
First Amendment. Int'l Soc'y for Krishna Consciousness, Inc.
v. Lee, 505 U.S. 672, 677-78 (1992) (citing United States v.
Kokinda, 497 U.S. 720, 725 (1990); Riley v. Nat'l Fed'n of
the Blind of N.C., Inc., 487 U.S. 781, 788-89 (1988); Heffron
v. Int'l Soc'y for Krishna Consciousness, Inc. (Heffron), 452
U.S. 640 (1981)). Solicitation ™is characteristically inter-
twined with informative and perhaps persuasive speech seek-
ing support for particular causes or for particular views on
economic, political, or social issues,∫ so that ™without solici-
tation the flow of such information and advocacy would likely
cease.∫ Vill. of Schaumburg v. Citizens for a Better Env't, 444
U.S. 620, 632 (1980).2
[2] Public streets and sidewalks ™occup[y] a `special posi-
tion in terms of First Amendment protection.' ∫ Snyder v.
2
The City does not argue that the Ordinance applies only to commercial
solicitation, and its text does not limit its reach to the commercial context.
Thus, we cannot, and do not, decide the Ordinance's validity under the
Supreme Court's ™commercial speech∫ case law. See Comite II, 607 F.3d
at 1184 n.3. Nevertheless, the Dissent erroneously suggests that an ™im-
promptu labor market . . . is the subject of this lawsuit.∫ Dissent at 17670.
Perhaps the Dissent's characterization would be tenable if the Plaintiffs
had brought an as-applied challenge, or if the City had sought refuge
under the commercial speech doctrine, but since neither of these possibili-
ties occurred, we need not further consider the Dissent's perspective on
this issue.
COMITE DE JORNALEROS v. REDONDO BEACH 17647
Phelps, 131 S. Ct. 1207, 1218 (2011) (quoting United States
v. Grace, 461 U.S. 171, 180 (1983)). They are ™ `the arche-
type of a traditional public forum.' ∫ Id. (quoting Frisby v.
Schultz, 487 U.S. 474, 480 (1988)). Because the Ordinance
regulates protected speech in a public forum, we apply the
™time, place, and manner∫ test: ™the government may impose
reasonable restrictions on the time, place, or manner of pro-
tected speech, provided the restrictions `are justified without
reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant governmental interest,
and that they leave open ample alternative channels for com-
munication of the information.' ∫ Ward v. Rock Against Rac-
ism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 293 (1984)).
Having outlined these guiding principles, we now proceed
to the ™time, place, and manner∫ analysis described in Ward
and numerous other cases. We assume for purposes of our
decision that the Ordinance is content neutral. See City of
Ladue v. Gilleo, 512 U.S. 43, 53 n.11 (1994) (™we set to one
side the content discrimination question∫).3
B. Construing the Ordinance
™The first step in overbreadth analysis is to construe the
challenged statute; it is impossible to determine whether a
statute reaches too far without first knowing what the statute
covers.∫ United States v. Williams, 553 U.S. 285, 293 (2008).
[3] The City claims that the Ordinance can be construed to
regulate only solicitation conduct, not solicitation speech,
such that the Ordinance only prohibits the acts of negotiating
employment terms, entering a car, and exchanging money.
We disagree with the City's characterization of the Ordi-
3
Because we conclude that the Ordinance is not a valid time, place, and
manner restriction, we do not address the Plaintiffs' alternative argument
that the Ordinance is unconstitutionally vague.
17648 COMITE DE JORNALEROS v. REDONDO BEACH
nance. The Ordinance applies to more than an actual physical
exchange. ™Solicitation∫ is defined broadly as ™[t]he act or an
instance of requesting or seeking to obtain something; a
request or petition.∫ Black's Law Dictionary 1520 (9th ed.
2009); see also Berger, 569 F.3d at 1090 n.6 (N.R. Smith, J.,
concurring in part) (™A common dictionary defines `solicit' as
`to approach with a request or a plea (as in selling or begging)
. . . to endeavor to obtain by asking or pleading . . . .' ∫ (quot-
ing Webster's Third New International Dictionary 2169
(unabridged ed. 1993))). In other words, ™[a] solicitation is
nothing more than a request in which the solicitor communi-
cates, in some fashion, his desire that the person solicited do
something, such as give money, join an organization, transact
business, etc.∫ Berger, 569 F.3d at 1090 (N.R. Smith, J., con-
curring in part). On its face, the Ordinance applies both to
those who ™solicit∫ or who ™attempt to solicit,∫ and it extends
to the solicitation of ™employment∫ and ™business,∫ not just
™contributions.∫ Redondo Beach Municipal Code ß 3-
7.1601(a) (emphasis added). In light of the Ordinance's prohi-
bition on the solicitation and attempted solicitation of employ-
ment and business, the Ordinance plainly addresses speech in
addition to conduct.
[4] The City argues that we should construe the Ordinance
narrowly to apply only to solicitors who ™cause motorists to
stop in traffic lanes in response to the solicitation.∫ As support
for this reading, the City submits (through its City Attorney's
affidavit) that it has applied the Ordinance only against indi-
viduals who cause motorists to stop in traffic, and that it has
no intention of altering this practice. It is true that, when ana-
lyzing a ™facial challenge, we must consider the [City]'s
authoritative constructions of the ordinance, including its own
implementation and interpretation of it.∫ Forsyth Cnty. v.
Nationalist Movement, 505 U.S. 123, 131 (1992). ™Although
we must consider the City's limiting construction of the Ordi-
nance, we are not required to insert missing terms into the
statute or adopt an interpretation precluded by the plain lan-
guage of the ordinance.∫ Foti v. City of Menlo Park, 146 F.3d
COMITE DE JORNALEROS v. REDONDO BEACH 17649
629, 639 (9th Cir. 1998). Here, the plain language of the Ordi-
nance, which prohibits solicitation by persons standing on a
street or highway, is not reasonably susceptible to the City's
narrowing construction. See Reno v. ACLU, 521 U.S. 844,
884 (1997) (™In considering a facial challenge, this Court may
impose a limiting construction on a statute only if it is `readily
susceptible' to such a construction.∫ (quoting Virginia v. Am.
Booksellers Ass'n, 484 U.S. 383, 397 (1988))); Bd. of Airport
Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 575 (1987)
(refusing to adopt limiting construction where ™the words of
the resolution simply leave no room for a narrowing construc-
tion∫). The City's proposed ™causation∫ requirement finds
absolutely no support in the statutory text or the legislative
history of the Ordinance.4 We cannot simply ™presume[ ] the
[City] will act in good faith and adhere to standards absent
from the ordinance's face.∫ City of Lakewood v. Plain Dealer
Publ'g Co., 486 U.S. 750, 770 (1988); see also Stevens, 130
S. Ct. at 1591 (™[T]he First Amendment protects against the
Government; it does not leave us at the mercy of noblesse
oblige. We would not uphold an unconstitutional statute
merely because the Government promised to use it responsi-
bly.∫).
The illogic of the City's proposed limiting construction is
revealed in a pair of hypotheticals submitted here and in the
district court. The City states on appeal that the Ordinance
would not apply to a person standing on the sidewalk holding
a sign that says ™Looking for work.∫ (Internal quotation marks
omitted.) In the district court, the City asserted that the Ordi-
nance would apply to a person standing on the sidewalk hold-
4
Apparently the Dissent agrees with us that the City's proposed inter-
pretation is untenable. The Dissent's lengthy statutory analysis fails to
provide support for the City's proposed ™causation∫ element. See Dissent
at 17672-78. Instead, the Dissent proffers a narrowing construction that
does nothing to alleviate the Ordinance's overbreadth problems. See Dis-
sent at 17672-74. Our conclusion that the Ordinance is not narrowly tai-
lored applies regardless of whether or not we adopt the Dissent's proposed
construction.
17650 COMITE DE JORNALEROS v. REDONDO BEACH
ing a sign that says ™I'm available to be hired today, Please
stop and talk to me.∫ Internal quotation marks omitted.) The
proposed distinguishing feature –please stop and talk to me
–is wholly absent from the face of the Ordinance, and we
cannot rewrite the Ordinance to supply the missing concept.
See, e.g., Bd. of Airport Comm'rs of L.A. v. Jews for Jesus,
Inc., 482 U.S. 569, 575 (1987) (refusing to adopt limiting
construction where ™the words of the resolution simply leave
no room for a narrowing construction∫).
In sum, we are not bound by the City officials' assurances
that they have not, and will not, enforce the Ordinance against
anything other than solicitations causing motorists to stop in
traffic. Similarly, the Ordinance is not reasonably susceptible
to the narrowing constructions proposed by the City. We
therefore decline the City's invitation to rewrite the statute's
plain language.5
C. Narrow Tailoring
[5] ™[A] regulation of the time, place, or manner of pro-
tected speech must be narrowly tailored to serve the govern-
ment's legitimate, content-neutral interests.∫ Ward, 491 U.S.
at 798. The regulation ™need not be the least restrictive or
least intrusive means of∫ achieving the government's goals,
but it may not ™burden substantially more speech than is nec-
essary.∫ Id. at 798-99. Put another way, the regulation must
™focus[ ] on the source of the evils the city seeks to eliminate
. . . and eliminate[ ] them without at the same time banning
or significantly restricting a substantial quantity of speech that
does not create the same evils.∫ Id. at 799 n.7.
5
ACORN is overruled to the extent that it construed a substantially iden-
tically worded ordinance as facially restricting only solicitation conduct.
(Our construction in ACORN remains viable with respect to its analysis of
the ordinance as applied to ACORN's conduct.) See ACORN, 798 F.2d at
1272 (agreeing with the district court that ™there was no evidence to sug-
gest that the Phoenix ordinance curtailed any activity other than solicita-
tion from vehicles at an intersection∫).
COMITE DE JORNALEROS v. REDONDO BEACH 17651
[6] The City contends that the Ordinance is narrowly tai-
lored to achieve the City's ™interest in promoting traffic flow
and safety.∫6 It is undisputed that ™[g]overnmental authorities
have the duty and responsibility to keep their streets open and
available for movement.∫ Cox v. Louisiana, 379 U.S. 536,
554-55 (1965); see also Heffron, 452 U.S. at 650 (™[A] State's
interest in protecting the `safety and convenience' of persons
using a public forum is a valid governmental objective.∫). It
is also undisputed that traffic flow and traffic safety are a
legitimate problem in certain parts of Redondo Beach.
The disputed issue is whether the Ordinance is narrowly
tailored to further these valid purposes. To satisfy the narrow
tailoring requirement, ™the Government . . . bears the burden
of showing that the remedy it has adopted does not `burden
substantially more speech than is necessary to further the gov-
ernment's legitimate interests.' ∫ Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 665 (1994) (quoting Ward, 491 U.S. at
799). We conclude that the Ordinance is not narrowly tailored
because the Ordinance restricts significantly more speech than
is necessary, and because the City could have employed vari-
ous less restrictive alternatives to achieve its goals.
[7] The Plaintiffs have identified several ™obvious exam-
ples∫ of prohibited speech that do not cause the types of prob-
lems that motivated the Ordinance. Watchtower Bible & Tract
Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 166
(2002). The Ordinance ™technically appl[ies] to children sell-
ing lemonade on the sidewalk in front of their home, as well
as to Girl Scouts selling cookies on the sidewalk outside of
their school∫ and would prohibit ™signbearers on sidewalks
6
Although the Ordinance may have been enacted in part to reduce pub-
lic nuisances such as littering, vandalism, public urination, and harassment
of pedestrians, the City does not argue on appeal that the Ordinance is nar-
rowly tailored to achieve these goals. ™ `We will not manufacture argu-
ments for an appellant, and a bare assertion does not preserve a claim.' ∫
Dennis v. BEH-1, LLC, 520 F.3d 1066, 1069 n.1 (9th Cir. 2008) (quoting
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)).
17652 COMITE DE JORNALEROS v. REDONDO BEACH
seeking patronage or offering handbills even though their con-
duct does not pose a traffic hazard,∫ Comite II, 607 F.3d at
1206 (Wardlaw, J., dissenting) (internal quotation marks
omitted), as well as prohibit sidewalk food vendors from
advertising their wares to passing motorists. The Ordinance
applies ™to a motorist who stops, on a residential street, to
inquire whether a neighbor's teen-age daughter or son would
be interested in performing yard work or babysitting.∫ Comite
I, 475 F. Supp. 2d at 965. As the Plaintiffs observe, the Ordi-
nance even applies to ™school children shouting `carwash' at
passing vehicles,∫ and ™protestors imploring donations to a
disaster relief fund.∫7 Thus, because the Ordinance is signifi-
cantly overinclusive, it is not narrowly tailored. See, e.g.,
Watchtower Bible, 536 U.S. at 168 (holding permitting
requirement for all door-to-door solicitation to be ™not tai-
lored to the Village's stated interests∫ because ™[e]ven if the
interest in preventing fraud could adequately support the ordi-
7
Contrary to the City's argument, we are not ™hypothesizing about spec-
ulative unlawful applications∫ of the Ordinance; we are simply listing
some of the many types of protected speech that fall squarely within the
plain language of this facially overbroad law.
As noted supra, although the Supreme Court stated in Washington State
Grange that, ™[i]n determining whether a law is facially invalid, we must
be careful not to go beyond the statute's facial requirements and speculate
about `hypothetical' or `imaginary' cases,∫ the Court acknowledged in a
footnote that First Amendment overbreadth challenges are subject to a
less-demanding standard, which requires only that ™the parties . . .
describe the instances of arguable overbreadth of the contested law.∫ 552
U.S. at 449-50 & n.6. If the suggested examples fall within the plain lan-
guage of the statute, the Plaintiffs have met their burden. See, e.g., City of
Houston v. Hill, 482 U.S. 451, 466-67 (1987) (™Houston's ordinance
criminalizes a substantial amount of constitutionally protected speech, and
accords the police unconstitutional discretion in enforcement. The ordi-
nance's plain language is admittedly violated scores of times daily, yet
only some individuals–those chosen by the police in their unguided
discretion–are arrested. Far from providing the `breathing space' that
`First Amendment freedoms need to survive,' the ordinance is susceptible
of regular application to protected expression.∫ (ellipsis omitted) (quoting
NAACP v. Button, 371 U.S. 415, 433 (1963))).
COMITE DE JORNALEROS v. REDONDO BEACH 17653
nance insofar as it applies to commercial transactions and the
solicitation of funds, that interest provides no support for its
application to petitioners, to political campaigns, or to enlist-
ing support for unpopular causes∫).
[8] The Ordinance is also geographically overinclusive.
The Ordinance applies citywide to all streets and sidewalks in
the City, yet the City has introduced evidence of traffic prob-
lems only with respect to a small number of major streets and
medians. The City has offered no evidence to justify extend-
ing its solicitation ban throughout the City in such a sweeping
manner. Because the burden rests on the City to submit evi-
dence in support of its position, we cannot simply assume that
the City's other streets, alleys, and sidewalks allegedly suffer
from similar solicitation-related traffic problems. By applying
the Ordinance citywide to all streets, alleys, and sidewalks,
the City has burdened substantially more solicitation speech
than is reasonably necessary to achieve its purpose. See, e.g.,
Schneider v. New Jersey, 308 U.S. 147, 163 (1939) (invalidat-
ing anti-handbilling ordinances even though ™their operation
is limited to streets and alleys and leaves persons free to dis-
tribute printed matter in other public places∫); cf. Hill, 530
U.S. at 730 (™[T]he . . . restriction occurs only within 100 feet
of a health care facility–the place where the restriction is
most needed.∫); Frisby, 487 U.S. at 486-87 (upholding picket-
ing ban that was limited to residential areas of city, not entire
city); Heffron, 452 U.S. at 652 (upholding solicitation restric-
tion that was limited to 125-acre fairground, not entire city);
Grayned, 408 U.S. at 119-20 (upholding anti-noise ordinance
that was limited to school grounds during school hours). In
fact, the Ordinance does not even distinguish between law-
fully parked cars and cars moving in traffic, and there is no
reason to believe (nor has the City provided evidence) that a
lawfully parked car would create the types of traffic problems
described by the City. Cf. ACORN, 798 F.2d at 1270 (affirm-
ing district court's finding ™that the mere presence of taggers
on the roadway or intersection is a potential safety hazard∫
(internal quotation marks omitted)).
17654 COMITE DE JORNALEROS v. REDONDO BEACH
[9] The impact of this overinclusiveness is particularly sig-
nificant because the City has a number of less restrictive
means of achieving its stated goals. Though we cannot apply
a stringent least-restrictive-alternative test, we also cannot
uphold the Ordinance if it ™burden[s] substantially more
speech than is necessary∫ to protect traffic safety and flow.
Ward, 491 U.S. at 799. The City has various other laws at its
disposal that would allow it to achieve its stated interests
while burdening little or no speech. The City need only
enforce laws against jaywalking, Cal. Veh. Code ß 21954,
stopping in traffic alongside a red-painted curb,8 id.
ß 22500(c), and stopping a car ™so as to obstruct the normal
movement of traffic,∫ id. ß 22651(b). Or the City could
enforce its own ordinances that provide that ™[n]o person shall
stand in any roadway, other than in a safety zone or in a cross-
walk, if such action interferes with the lawful movement of
traffic[,]∫ and ™[n]o pedestrian shall stop or stand on a side-
walk except as near as is physically possible to the building
line or the curb line at any place in the Central Traffic District
or any business district.∫ Redondo Beach Municipal Code
ßß 3-7.1004, .1005. Even under the intermediate scrutiny
™time, place, and manner∫ analysis, we cannot ignore the exis-
tence of these readily available alternatives. See, e.g., Vill. of
Schaumburg, 444 U.S. at 637 (™The Village's legitimate inter-
est in preventing fraud can be better served by measures less
intrusive than a direct prohibition on solicitation. Fraudulent
misrepresentations can be prohibited and the penal laws used
to punish such conduct directly.∫); Schneider, 308 U.S. at
162, 164 (™There are obvious methods of preventing littering.
Amongst these is the punishment of those who actually throw
papers on the streets. . . . Frauds may be denounced as
offenses and punished by law. Trespasses may similarly be
forbidden. If it is said that these means are less efficient and
convenient than bestowal of power on police authorities to
8
The City acknowledges that ™the lanes nearest the curb[s of the inter-
sections at issue] are traffic lanes, posted with `No Stopping Anytime'
signs.∫
COMITE DE JORNALEROS v. REDONDO BEACH 17655
decide what information may be disseminated from house to
house, and who may impart the information, the answer is that
considerations of this sort do not empower a municipality to
abridge freedom of speech and press.∫). As the Supreme
Court has explained in the analogous commercial speech con-
text, ™if there are numerous and obvious less-burdensome
alternatives to the restriction on commercial speech, that is
certainly a relevant consideration in determining whether the
`fit' between ends and means is reasonable.∫ City of Cincin-
nati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13
(1993); see also Lorillard Tobacco Co. v. Reilly, 533 U.S.
525, 554 (2001) (noting that the ™framework for analyzing
regulations of commercial speech . . . is `substantially similar'
to the test for time, place, and manner restrictions∫ (quoting
Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 477
(1989)). Here, there are a number of feasible, readily identifi-
able, and less-restrictive means of addressing the City's con-
cerns.9 The Ordinance is not narrowly tailored.
[10] Although the City need not necessarily employ the
least-restrictive alternative, it may not select an option that
9
The Dissent incorrectly asserts that ™city authorities have tried for
years to use other laws to deal with day laborers.∫ Dissent at 17678. First,
the Dissent quotes Sergeant Contreras's statement that ™warnings∫ and
™[r]andom enforcement∫ were ™ineffective.∫ But read in context, Sergeant
Contreras's statement refers to the City's enforcement of the Ordinance
itself, not other laws. The same goes for the evidence of business leaders'
complaints. See Dissent at 17678-80.
The Dissent also quotes City Attorney Webb's statement that the City's
™enforcement of other applicable laws∫ was ™largely unsuccessful.∫ Dis-
sent at 17679. But the district court held this statement inadmissible
because Webb failed to establish his personal knowledge of this fact.
Comite I, 475 F. Supp. 2d at 970. Contrary to the Dissent's selective read-
ing of the Federal Rules of Civil Procedure, Rule 56 explicitly requires
that summary judgment affidavits ™be made on personal knowledge.∫ Fed.
R. Civ. P. 56(c)(4); see also, e.g., Shakur v. Schriro, 514 F.3d 878, 890
(9th Cir. 2008) (™[C]onclusory affidavits that do not affirmatively show
personal knowledge of specific facts are insufficient.∫ (internal quotation
marks omitted)).
17656 COMITE DE JORNALEROS v. REDONDO BEACH
unnecessarily imposes significant burdens on First
Amendment-protected speech. ™If the First Amendment
means anything, it means that regulating speech must be a last
–not first–resort.∫ Thompson v. W. States Med. Ctr., 535
U.S. 357, 373 (2002). Because the Ordinance ™suppress[es] a
great quantity of speech that does not cause the evils that it
seeks to eliminate,∫ Ward, 491 U.S. at 799 n.7, it is facially
invalid. We do not doubt that a properly drawn ordinance
could achieve the City's goals; however, this Ordinance does
not pass the test.10
IV. CONCLUSION
Because the Ordinance is not narrowly tailored to achieve
the City's goals, it is facially unconstitutional. The decisions
of the district court invalidating the Ordinance, and awarding
attorneys' fees to the Plaintiffs, are
AFFIRMED.
GOULD, Circuit Judge, concurring in judgment:
I agree that the City of Redondo Beach did not narrowly
tailor its ordinance, nor meet its burden to show that the Ordi-
nance leaves open ample alternative channels of communica-
tion for day laborers. See Ward v. Rock Against Racism, 491
10
The dissent urges us to sever the offending provision of this statute,
so as to strike down subsection (a), which applies to the day laborers, and
leave intact subsection (b). Dissent at 17681-85. Because the City has
waived any argument regarding severability by failing to raise it in its
briefs or at oral argument, we do not consider it here. See, e.g., Legal
Servs. Corp. v. Velazquez, 531 U.S. 533, 549 (2001); United States v. City
of Arcata, 629 F.3d 986, 992 (9th Cir. 2010).
The City has also waived any objections regarding the vagueness of the
district court's injunction. United States v. Bowen, 172 F.3d 682, 689 (9th
Cir. 1999).
COMITE DE JORNALEROS v. REDONDO BEACH 17657
U.S. 781 (1989). If the City had designated a permissible area
for day laborer solicitation, in a convenient location for day
laborers and potential employers alike, I would hold that the
ordinance was a reasonable time, place, and manner restric-
tion. We err when we make it so hard for municipalities to
satisfy the test for reasonable restraints on time, place, and
manner of speech that these municipalities cannot achieve
important public goals like traffic safety while preserving
speech. But because the day laborers here were shut out of the
City of Redondo Beach, and left without any practical way to
reach their intended audience with a message of job solicita-
tion, see City of Ladue v. Gilleo, 512 U.S. 43, 56-58 (1994),
and because the City's goals could have been effectively
accomplished with a narrower ordinance that did not cover all
streets and that recognized permissible solicitation locations,
I concur in the judgment.
M. SMITH, Circuit Judge, with whom THOMAS, Circuit
Judge, joins, and with whom GRABER, Circuit Judge, joins
as to Part I, specially concurring:
I agree with my colleagues in the majority that the Ordi-
nance is not narrowly tailored. I write separately to set forth
two additional reasons why I believe the Ordinance should be
declared facially invalid: it is a content-based restriction on
speech that does not withstand strict scrutiny, and, even if it
were content neutral, it does not leave open ample alternative
channels of communication.
I. CONTENT NEUTRALITY
There are two methods for determining whether a statute is
content neutral or content based. First, ™a content-based pur-
pose may be sufficient in certain circumstances to show that
a regulation is content based.∫ Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 642 (1994). Second, ™laws that by their
17658 COMITE DE JORNALEROS v. REDONDO BEACH
terms distinguish favored speech from disfavored speech on
the basis of the ideas or views expressed are content based.∫
Id. at 643. Because the second line of inquiry clearly reveals
a content-based law, I need not consider whether the City har-
bored a content-based purpose.
The governing test is straightforward: ™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.∫ City of Los Angeles v. Ala-
meda Books, Inc., 535 U.S. 425, 448 (2002) (Kennedy, J.,
concurring in the judgment); see also Holder v. Humanitarian
Law Project, 130 S. Ct. 2705, 2723-24 (2010) (deeming law
to be content based because the validity of plaintiffs' speech
™depends on what they say∫). ™Deciding whether a particular
regulation is content based or content neutral is not always a
simple task,∫ Turner Broad. Sys., 512 U.S. at 642, but the
Supreme Court's case law is instructive. Some examples of
content-based restrictions include laws that allow labor-
related picketing but prohibit all other forms of picketing,
Carey v. Brown, 447 U.S. 455, 460-61 (1980); Police Dept.
of Chi. v. Mosley, 408 U.S. 92, 95-96 (1972); a rule that bars
utilities from ™ `discuss[ing] political matters' ∫ in their com-
munications with customers, Consol. Edison Co. of N.Y. v.
Pub. Serv. Comm'n, 447 U.S. 530, 532 (1980) (citation omit-
ted); an ordinance that allows newsracks promoting newspa-
pers but bans newsracks promoting advertising circulars, City
of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429
(1993); and a law that ™taxes general interest magazines, but
exempts newspapers and religious, professional, trade, and
sports journals,∫ Ark. Writers' Project, Inc. v. Ragland, 481
U.S. 221, 223 (1987). In contrast, examples of content-neutral
restrictions include a law regulating all picketing regardless of
its content or subject matter, Frisby v. Schultz, 487 U.S. 474,
477, 481-82 (1988); an ordinance banning ™the posting of [all]
signs on public property,∫ Members of the City Council of
L.A. v. Taxpayers for Vincent (Taxpayers for Vincent), 466
U.S. 789, 791 (1984); and, most relevantly, a law regulating
COMITE DE JORNALEROS v. REDONDO BEACH 17659
all ™sales, distribution, and fund solicitation operations∫ at a
state fair, Heffron v. Int'l Soc'y for Krishna Consciousness,
Inc. (Heffron), 452 U.S. 640, 644 (1981).
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), provides
useful guidance regarding facially content-based laws. A city
ordinance banned cross burning with the intent to intimidate
™on the basis of race, color, creed, religion or gender.∫ Id. at
391 (internal quotation marks omitted). The Court explained
that, although ™fighting words∫ are generally subject to prohi-
bition, the government must justify (under strict scrutiny) any
content- or subject matter-based distinction among different
types of fighting words. Id. at 384-85. Regarding the cross-
burning ordinance before it, the Court wrote: ™Displays con-
taining abusive invective, no matter how vicious or severe,
are permissible unless they are addressed to one of the speci-
fied disfavored topics∫–i.e., ™ `race, color, creed, religion or
gender.' ∫ Id. at 391. In contrast, ™[t]hose who wish to use
`fighting words' in connection with other ideas–to express
hostility, for example, on the basis of political affiliation,
union membership, or homosexuality–are not.∫ Id. In other
words, a law is content based even if it does not promote or
prohibit a particular viewpoint. As the Court explained, all
forms of ™content discrimination raise[ ] the specter that the
Government may effectively drive certain ideas or viewpoints
from the marketplace.∫ Id. at 387 (internal quotation marks
omitted). Merely restricting speech on a particular topic trig-
gers strict scrutiny.
Having considered these background principles, I now turn
to the most analogous example of a content-based law, which
appears in Burson v. Freeman, 504 U.S. 191, 193-94 (1992).
The statute at issue in Burson prohibited soliciting votes near
polling places on election day. Id. Although the Court was
divided over how to resolve the case, the Justices unani-
mously agreed that the law was content based. Id. at 197 (plu-
rality opinion); id. at 215 (Scalia, J., concurring in the
17660 COMITE DE JORNALEROS v. REDONDO BEACH
judgment); id. at 224 (Stevens, J., dissenting). As explained
by the plurality opinion,
Whether individuals may exercise their free speech
rights near polling places depends entirely on
whether their speech is related to a political cam-
paign. The statute does not reach other categories of
speech, such as commercial solicitation, distribution,
and display. This Court has held that the First
Amendment's hostility to content-based regulation
extends not only to a restriction on a particular view-
point, but also to a prohibition of public discussion
of an entire topic.
Id. at 197 (plurality opinion).
In light of this authority, the Redondo Beach Ordinance is
content based on its face. It is essentially the inverse of the
law reviewed in Burson: it prohibits certain subject matters–
any solicitation related to ™employment, business, or
contributions∫–and allows all other solicitation (such as
political solicitation) to continue unabated. Under the Ordi-
nance, individuals may not stand on Redondo Beach streets or
sidewalks and communicate with motorists to ™[s]olicit[ ]
alms and contributions,∫ United States v. Kokinda, 497 U.S.
720, 724 (1990) (internal quotation marks omitted); solicit cli-
ents for their business, see Edenfield v. Fane, 507 U.S. 761,
766 (1993); or solicit contributions to a political fund, see
Fed. Election Comm'n v. Nat'l Right to Work Comm., 459
U.S. 197, 201-02 (1982). They may, however, stand on those
same streets or sidewalks and communicate with motorists to
solicit votes, see Burson, 504 U.S. at 193-94; solicit support
for pending legislation, see E. R.R. Presidents Conference v.
Noerr Motor Freight, Inc., 365 U.S. 127, 138 (1961); solicit
membership in a church, labor union, or other organization,
cf. Thomas v. Collins, 323 U.S. 516, 537 (1945); or, as the
Plaintiffs and Amici point out, solicit moral support (as occurs
at labor pickets and political rallies, for example).
COMITE DE JORNALEROS v. REDONDO BEACH 17661
Thus, the Ordinance is facially content based: some solici-
tation speech is permitted and other solicitation speech is
restricted. Individuals are subject to the Ordinance ™depend[-
ing] on what they say.∫ Humanitarian Law Project, 130 S. Ct.
at 2723-24. If they request ™employment, business, or contri-
butions∫ they are subject to criminal sanction, but if they
request anything else, they are unaffected.
I recognize that the Supreme Court's decision in Hill v.
Colorado, 530 U.S. 703 (2000), could be read to cast some
doubt upon this conclusion. Hill addressed a ™Colorado stat-
ute that regulate[d] speech-related conduct within 100 feet of
the entrance to any health care facility.∫ Id. at 707. The statute
™ma[de] it unlawful within the regulated areas for any person
to `knowingly approach' within eight feet of another person,
without that person's consent, `for the purpose of passing a
leaflet or handbill to, displaying a sign to, or engaging in oral
protest, education, or counseling with such other person.' ∫ Id.
(quoting Colo. Rev. Stat. ß 18-9-122(3) (1999)). The Court
first stated three reasons why the statute was content neutral
under Ward v. Rock Against Racism, 491 U.S. 781 (1989):
First, it is not a ™regulation of speech.∫ Rather, it is
a regulation of the places where some speech may
occur. Second, it was not adopted ™because of dis-
agreement with the message it conveys.∫ This con-
clusion is supported not just by the Colorado courts'
interpretation of legislative history, but more impor-
tantly by the State Supreme Court's unequivocal
holding that the statute's ™restrictions apply equally
to all demonstrators, regardless of viewpoint, and the
statutory language makes no reference to the content
of the speech.∫ Third, the State's interests in protect-
ing access and privacy [at medical facilities], and
providing the police with clear guidelines, are unre-
lated to the content of the demonstrators' speech. As
we have repeatedly explained, government regula-
tion of expressive activity is ™content neutral∫ if it is
17662 COMITE DE JORNALEROS v. REDONDO BEACH
justified without reference to the content of regulated
speech.
Hill, 530 U.S. at 719-20 (footnote omitted).
Were this the entirety of the Court's reasoning, I would be
hard pressed to conclude that the Redondo Beach Ordinance
is content based. The Court's three-part analysis focused
almost entirely on questions of legislative motivations and
viewpoint neutrality. But the Court did not use this three-part
test as the exclusive method of determining content neutrality.
Instead, it reaffirmed Carey v. Brown's core holding that the
™prohibition on discussion of particular topics∫ and the
™[r]egulation of the subject matter of messages, though not as
obnoxious as viewpoint-based regulation, [are] also . . . objec-
tionable form[s] of content-based regulation.∫ Hill, 530 U.S.
at 722-23 (emphases added). The Court then concluded that
the Colorado statute restricted ™an extremely broad category
of communications,∫ but not any particular ™subject matter-
[s],∫ id. at 723, because ™[i]t applie[d] to all `protest,' to all
`counseling,' and to all demonstrators,∫ id. at 725.
In a particularly relevant observation, the Court noted that
the Colorado ™statute applies equally to used car salesmen,
animal rights activists, fundraisers, environmentalists, and
missionaries.∫ Id. at 723. That statement is not true with
respect to the Redondo Beach Ordinance. On Redondo Beach
streets and sidewalks, ™used car salesmen∫ and ™fundraisers∫
are unable to practice their respective crafts of selling and
fundraising, whereas ™missionaries,∫ ™animal rights activists,∫
and ™environmentalists,∫ are free to solicit religious conver-
sion, political assistance, and moral support. In other words,
the Ordinance does not simply regulate ™extremely broad
categor[ies] of communications,∫ id. at 723, such as all
requests and solicitations (as was the case in Heffron, 452
U.S. at 644). Rather, the Ordinance regulates particular ™sub-
ject matter[s]∫ within those broad categories. Hill, 530 U.S. at
723. Thus Hill, rather than supporting the City's argument
COMITE DE JORNALEROS v. REDONDO BEACH 17663
that the Ordinance is content neutral, cuts in favor of my con-
clusion to the contrary.
In sum, I would conclude that the Ordinance is a content-
based, rather than content-neutral, restriction on speech. It
restricts discussion of certain subject matters–namely,
speech that requests employment, business, and contributions
–while allowing free discussion about other subject matters.
Under Burson v. Freeman, R.A.V. v. City of St. Paul, Carey
v. Brown, Chicago v. Mosley, Consolidated Edison, City of
Cincinnati v. Discovery Network, and Arkansas Writers' Proj-
ect, the Ordinance is a content-based restriction on speech.
™Content-based regulations are presumptively invalid,∫
R.A.V., 505 U.S. at 382, and may be upheld only if they sat-
isfy ™the most exacting scrutiny,∫ Turner Broad. Sys., 512
U.S. at 642. Such regulations ™must be narrowly tailored to
promote a compelling Government interest,∫ and ™[i]f a less
restrictive alternative would serve the Government's purpose,
the legislature must use that alternative.∫ United States v.
Playboy Entm't Grp., Inc., 529 U.S. 803, 813 (2000). Because
the Ordinance is not narrowly tailored under the intermediate-
scrutiny ™time, place, and manner∫ test discussed in the
majority opinion, it fails to satisfy strict scrutiny.
II. ALTERNATIVE CHANNELS OF
COMMUNICATION
In addition, even assuming (as the majority opinion does)
that the Ordinance is content neutral, I would conclude the
Ordinance does not leave open ample alternative channels for
the Plaintiffs to engage in their protected speech. See Ward,
491 U.S. at 791 (™[T]he government may impose reasonable
restrictions on the time, place, or manner of protected speech,
provided the restrictions . . . leave open ample alternative
channels for communication of the information.∫ (internal
quotation marks omitted)). The City bears the burden of mak-
17664 COMITE DE JORNALEROS v. REDONDO BEACH
ing this showing. Lim v. City of Long Beach, 217 F.3d 1050,
1054 (9th Cir. 2000) (collecting cases).
The Supreme Court's case law provides guidance on how
to apply this standard. As explained in City of Ladue v. Gilleo,
512 U.S. 43, 56-57 (1994), and Linmark Associates, Inc. v.
Township of Willingboro, 431 U.S. 85, 93 (1977), the prof-
fered alternatives must allow the speaker to reach his or her
intended audience, in an equally effective manner as the pro-
hibited speech, and without incurring meaningfully greater
costs in time or money. In Linmark Associates, the Court
overturned a ban on ™for sale∫ signs in residential neighbor-
hoods, explaining:
Although in theory sellers remain free to employ a
number of different alternatives, in practice realty is
not marketed through leaflets, sound trucks, demon-
strations, or the like. The options to which sellers
realistically are relegated– primarily newspaper
advertising and listing with real estate agents–
involve more cost and less autonomy than ™For Sale∫
signs, are less likely to reach persons not deliberately
seeking sales information, and may be less effective
media for communicating the message that is con-
veyed by a ™For Sale∫ sign in front of the house to
be sold. The alternatives, then, are far from satisfac-
tory.
431 U.S. at 93 (citations omitted). Similarly, in City of Ladue,
the Court overturned an ordinance that barred residents from
posting any type of sign on their property (with some excep-
tions that were not relevant to the Court's analysis). The
Court emphasized that the prohibited speech ™may have no
practical substitute,∫ particularly ™for persons of modest
means.∫ 512 U.S. at 57. The Court rejected alternatives such
as ™taking out a newspaper advertisement, handing out leaf-
lets on the street, or standing in front of one's house with a
handheld sign,∫ because ™the added costs in money or time∫
COMITE DE JORNALEROS v. REDONDO BEACH 17665
of those alternatives ™make the difference between participat-
ing and not participating in some public debate.∫ Id. The
Court further observed that the speakers' intended audience–
their neighbors–™could not be reached nearly as well by
other means.∫ Id.
The Court has engaged in a similar mode of analysis dating
back to at least the 1940s. See Martin v. City of Struthers, 319
U.S. 141, 146 (1943) (™Door to door distribution of circulars
is essential to the poorly financed causes of little people.∫);
Milk Wagon Drivers Union of Chi., Local 753 v. Meadow-
moor Dairies, Inc., 312 U.S. 287, 293 (1941) (™Peaceful pick-
eting is the workingman's means of communication.∫). More
recently, the Court has acknowledged its ™special solicitude
for forms of expression that are much less expensive than fea-
sible alternatives.∫ Taxpayers for Vincent, 466 U.S. at 812
n.30.
That being said, the Court has not always rejected a defen-
dant's proposed alternative means of communication. In Hef-
fron, the Court was persuaded that solicitors were free to
engage in their protected speech anywhere outside the 125-
acre state fairgrounds, and were also free to rent a booth
inside the fairgrounds for the same purpose. 452 U.S. at
654-55. In Taxpayers for Vincent, the Court upheld a ban on
placing posters on public property because there was no evi-
dence ™that the posting of political posters on public property
is a uniquely valuable or important mode of communication.∫
466 U.S. at 812. Finally, in Frisby v. Schultz, the Court
upheld a ban on picketing in front of individual residences
because protestors could still ™enter such neighborhoods,
alone or in groups, even marching,∫ ™go door-to-door to pros-
elytize their views,∫ ™distribute literature∫ door-to-door ™or
through the mails,∫ and ™contact residents by telephone∫–
any of which would reasonably allow the underlying message
to be disseminated to the intended audience. 487 U.S. at 484
(internal quotation marks omitted).
17666 COMITE DE JORNALEROS v. REDONDO BEACH
Here, however, the City fails to identify adequate alterna-
tives, making this case more like Linmark Associates and City
of Ladue than Heffron, Taxpayers for Vincent, and Frisby.
The City first relies on the alternatives upheld in ACORN:
™solicitation on the sidewalk from pedestrians, canvassing
door-to-door, telephone campaigns, or direct mail.∫ ACORN
v. City of Phoenix, 798 F.2d 1260, 1271 (9th Cir. 1986). How-
ever, the City has not actually met its burden of submitting
evidence to establish that these alternatives are effective for
day laborers. Although our three-judge panel may have been
bound to accept these alternatives as a matter of stare decisis,
our en banc panel is not so bound. I find no evidence in the
record that day laborers could effectively employ the alterna-
tives listed in ACORN. Likewise, there is no evidence to sup-
port the Dissent's claim that ™many∫ day laborers advertise in
the newspaper and on Craigslist. Dissent at 17685. Day labor-
ers simply cannot effectively communicate their intended
message (™I am available to work today∫) to their intended
audience (contractors, homeowners, and other potential
employers) by soliciting pedestrians, canvassing door-to-door,
or mailing and calling individuals and businesses directly. See
Linmark Assocs., 431 U.S. at 93. The proposed alternatives
impose obvious ™added costs in money [and] time∫ as com-
pared to solicitation on public streets, which renders these
options inadequate as a matter of law. City of Ladue, 512 U.S.
at 57.
The City next argues that the day laborers could simply
congregate in nearby private parking lots. But as the Plaintiffs
correctly point out, it is impermissible for the City to ™force
speakers out of public fora and onto private property.∫ The
Supreme Court has never allowed privately owned venues to
substitute for public fora. See Se. Promotions, Ltd. v. Conrad,
420 U.S. 546, 556 (1975) (™Whether petitioner might have
used some other, privately owned, theater in the city for the
production is of no consequence.∫); see also ACLU of Nev. v.
City of Las Vegas, 466 F.3d 784, 791 (9th Cir. 2006) (™There
is a growing nationwide trend toward the privatization of pub-
COMITE DE JORNALEROS v. REDONDO BEACH 17667
lic property. . . . If this trend of privatization continues–and
we have no reason to doubt that it will–citizens will find it
increasingly difficult to exercise their First Amendment rights
to free speech, as the fora where expressive activities are pro-
tected dwindle.∫ (internal quotation marks omitted)).
Finally, the City argues that an adequate alternative would
be for day laborers to congregate at one of the six ™day
laborer centers in Southern California∫ listed on Plaintiff
NDLON's website. However, none of the centers is located
anywhere near Redondo Beach. (The Dissent suggests that
these ™centers are easy to find∫ and that employers face ™a
minimum of inconvenience∫ when traveling there. Dissent at
17685. These assertions find no support in the record and,
indeed, seem to contradict the obvious reality that traveling in
Southern California is rarely, if ever, minimally inconve-
nient.) Thus, the City's proposed ™alternative∫ fails to allow
the Plaintiffs to reach their intended audience: residents of
Redondo Beach and neighboring areas. See Linmark Assocs.,
431 U.S. at 93. ™[O]ne is not to have the exercise of his liberty
of expression in appropriate places abridged on the plea that
it may be exercised in some other place.∫ Schneider v. New
Jersey, 308 U.S. 147, 163 (1939); see also Schad v. Borough
of Mount Ephraim, 452 U.S. 61, 76 (1981) (rejecting citywide
ban on live entertainment because ™there is no evidence in this
record to support the proposition that the kind of entertain-
ment appellants wish to provide is available in reasonably
nearby areas∫).
Accordingly, in addition to concluding that the Ordinance
is a content-based restriction that does not satisfy strict scru-
tiny, I would also conclude that the City has failed to meet its
burden of showing that there are ample alternative channels
available for the Plaintiffs to engage in protected solicitation.
17668 COMITE DE JORNALEROS v. REDONDO BEACH
Chief Judge KOZINSKI, with whom Judge BEA joins, in
deep dissent:
This is folly.
For years, the city of Redondo Beach has had a serious
problem with day laborers–sometimes as many as seventy-
five–crowding sidewalks and street-corners, soliciting work
from passing motorists. See Appendix 1. As might be
expected when large groups of men gather at a single loca-
tion, they litter, vandalize, urinate, block the sidewalk, harass
females and damage property. Cars and trucks stop to negoti-
ate employment and load up laborers, disrupting traffic.1
1
The majority recognizes that ™the Ordinance may have been enacted in
part to reduce public nuisances such as littering, vandalism, public urina-
tion, and harassment of pedestrians,∫ but doesn't consider these justifica-
tions because ™the City does not argue on appeal that the Ordinance is
narrowly tailored to achieve these goals.∫ Maj. op. at 17651 n.6. But the
city mentions these problems no fewer than six times in its opening brief
(Blue Brief at 7, 12, 13, 42, 48 and 63, which includes the fact section,
the summary of argument and the section dealing with narrow tailoring).
Here's a sample:
c. The Ordinance Is Narrowly Tailored to Promote the City's
Recognized Significant Government Interests.
i. The Ordinance Meets the Ward Standard for Narrow
Tailoring.
....
The only factual distinction between this case and ACORN
is that ACORN addressed the application of an essentially
identical ordinance to people who went into the street to
solicit cars that already had stopped at a red light. Here, the
Ordinance is applied to people who, by their actions, cause
cars to stop in traffic. There is no principled distinction
between these two factual scenarios that changes the conclu-
sion that both ordinances are narrowly tailored. Indeed, the
facts here show a greater traffic safety impact than the facts
of ACORN. The public safety issues in this case–
interruption of and congestion of traffic, vandalism, litter,
COMITE DE JORNALEROS v. REDONDO BEACH 17669
Residents and businesses need not suffer these harms and
indignities day in and day out for years on end. It is to secure
the safety, beauty, tranquility and orderliness of neighbor-
hoods that municipal governments are instituted among men.
Nothing in the First Amendment prevents government from
ensuring that sidewalks are reserved for walking rather than
loitering; streets are used as thoroughfares rather than open-
urinating in public, and occasional fights (Contreras Decl.,
∂ 3, ER:168)–are more significant than the impeding of a
vehicle's re-starting that this Court approved in ACORN.
Blue Brief at 36, 42. The city reiterates the argument in its reply brief
(Grey Brief at 7, 11-12, 15, 17 and 21). The district court record is chock-
full of declarations and exhibits documenting these problems, and the dis-
trict court's opinion devotes an entire section to them. Comite de Jor-
naleros de Redondo Beach v. City of Redondo Beach, 475 F. Supp. 2d
952, 963-64, 966 (C.D. Cal. 2006). The majority's claim that the city
waived this argument is an invention.
The city's primary focus in its briefing is on traffic problems because
the controlling authority at the time the briefs were written was ACORN
v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986), which emphasized traf-
fic flow and safety in upholding the very similar ordinance there. Id. at
1268-70. The city had no way of knowing the case would go en banc and
a twenty-five-year-old precedent would be overruled. See maj. op. at
17650 n.5. It thus had no reason to argue the other reasons justifying the
ordinance with equal vigor.
Unbelievably, the majority holds that the city waived all of these
grounds because it did not anticipate that we would overrule ACORN, and
thus did not offer supplemental briefing or discuss the matter at oral argu-
ment. Maj. op. at 17651 n.6. But the city had no reason to initiate such
briefing or argument because plaintiffs did not argue that ACORN should
be overruled. It will come as a rude shock to members of our bar to learn
that failure to ask for supplemental briefing in order to argue that an en
banc court should not overrule a precedent amounts to a waiver, which
then precludes a party from arguing that it is entitled to prevail even if the
court overrules the precedent sua sponte and without asking for briefing
from the parties. Not only does the majority overrule ACORN without
obtaining the views of the parties, it adopts a draconian waiver rule that
violates all reason and justice. And to what end? Just so my colleagues can
shut their eyes to inconvenient facts in the record that stand in the way of
the outcome they wish to reach. Have we really come to this?
17670 COMITE DE JORNALEROS v. REDONDO BEACH
air hiring halls; and bushes serve as adornment rather than
latrines. See Appendix 2. The majority is demonstrably, egre-
giously, recklessly wrong. If I could dissent twice, I would.2
***
Let's start at the very beginning, a very good place to start:
Is this even a regulation of speech? Sure, it implicates speech,
but almost everything implicates communication of some
sort; governing would be impossible if price fixing, street-
walking, gambling, blackmail, employment discrimination,
the sale of human organs, operating a retail business and the
gazillion other activities that involve communication were all
subject to strict scrutiny. They are not, nor is the impromptu
labor market that is the subject of this lawsuit. Cf. City of New
Orleans v. Dukes, 427 U.S. 297, 303 (1976); One World One
Family Now v. City & Cnty. of Honolulu, 76 F.3d 1009, 1015
(9th Cir. 1996). Redondo Beach's ordinance seeks to regulate
conduct–precisely the kind of conduct that's regulated when
we require retail establishments to obtain business licenses,
maintain health standards, buy insurance and hire workers
based on merit rather than race or sex. Panda Express can't set
up a stand anywhere it pleases and start selling moo shu pork
to motorists. Any argument that the First Amendment gives
them a right to pander to passers-by would be laughed out of
court.
But let's say that what's being regulated here is speech–
why isn't it a perfectly valid time, place and manner restric-
tion? The ordinance draws no distinctions based on content;
it doesn't favor one kind of speaker over another. What it
does is to regulate a very narrow and finely drawn class of
conduct: standing around on sidewalks and street corners in
order to interact with passing motorists. The majority seems
to think this makes the ordinance ™significantly overinclu-
sive,∫ maj. op. at 17652, because it ™ `technically appli[es]' ∫
2
I am authorized to state Judge Bea would also join such second dissent.
COMITE DE JORNALEROS v. REDONDO BEACH 17671
to all manner of conduct my colleagues seem to believe is
protected, id. at 17651 (alteration in original) (quoting Comite
de Jornaleros de Redondo Beach v. City of Redondo Beach,
607 F.3d 1178, 1206 (9th Cir. 2010) (Wardlaw, J., dissenting)
(internal quotation marks omitted)). But what's remarkable
about the majority's parade of horribles is just how unlikely
and contrived they are: children selling lemonade; Girl Scouts
selling cookies; ™sidewalk food vendors . . . advertising their
wares to passing motorists∫ id. at 17652;3 ™a motorist who
stops, on a residential street, to inquire whether a neighbor's
teen-age daughter or son would be interested in performing
yardwork or babysitting,∫ id. (internal quotation mark omit-
ted); ™school children shouting `carwash' at passing vehicles,∫
id. (internal quotation marks omitted).
The judicial imagination can always run wild in conjuring
how laws can be misapplied, but the Supreme Court instructs
us that ™the mere fact that one can conceive of some imper-
missible applications of a statute is not sufficient to render it
susceptible to an overbreadth challenge.∫ Members of the City
Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800
(1984). Rather, ™there must be a realistic danger that the stat-
ute itself will significantly compromise recognized First
Amendment protections of parties not before the Court for it
to be facially challenged on overbreadth grounds.∫ Id. at 801.
The Court goes on to explain that the effect on third parties
can be considered in an overbreadth challenge only to the
extent the ordinance will have a ™different impact on any third
parties' interests in free speech than it has∫ on the parties
before the court. Id. This is an important limitation that my
colleagues overlook, and it wipes out most of their examples:
3
The Redondo Beach City Council was, in fact, worried about the traffic
problems that might be caused by street vendors and thus strictly limited
such vendors in time and place. Sidewalk food vendors are allowed in
Redondo Beach only during the summer season and only along one side
of the street bordering the beach. Redondo Beach, Cal., Municipal Code
ßß 3-7.2001(d), 3-7.2004.
17672 COMITE DE JORNALEROS v. REDONDO BEACH
lemonade stands, food carts, cookie vendors, car washers,
fund raisers. These activities are far more lovable than a
bunch of scraggly men smoking and spitting while waiting for
jobs, see infra apps. 1-3, but they're entitled to no greater pro-
tection from regulation: Each involves someone trying to
interact with a motorist while he's still at the wheel. As the
Supreme Court explained in Vincent, piling on examples of
the same kind of conduct affected by the regulation does not
an overbreadth challenge make. 466 U.S. at 801-03.
We're left with the driver who stops on a residential street
to inquire whether ™a neighbor's teen-age daughter or son∫
can babysit. Frankly, I'm not keen on having drivers cruising
neighborhoods trying to lure teenagers into their cars with
promises of employment, and I'm reasonably sure the First
Amendment doesn't give any broad protection to such activi-
ties. But to come up with even these far-fetched examples, the
majority has to stretch the statutory language to the limit.
Why do that? Our job is not to construe statutes broadly so as
to imperil their constitutionality; it's to read them narrowly so
as to preserve them. See NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 30 (1937) (™The cardinal principle of statu-
tory construction is to save and not to destroy.∫); Ashwander
v. TVA, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring).
And the ordinance here can be read quite sensibly to exclude
all legitimate overbreadth concerns.
Part (a) of the ordinance makes it ™unlawful for any person
to stand on a street or highway and solicit, or attempt to
solicit, employment, business, or contributions from an occu-
pant of any motor vehicle.∫ Redondo Beach, Cal., Municipal
Code ß 3-7.1601 (emphasis added). The operative term here
is ™solicit,∫ and it can be read broadly as including all com-
munications with motorists, including holding up a billboard
urging drivers to support a political candidate or patronize a
local establishment; or it can be read narrowly as requiring a
face-to-face conversation with a vehicle occupant for the pur-
pose of consummating a transaction on the spot, such as being
COMITE DE JORNALEROS v. REDONDO BEACH 17673
hired as a day laborer, obtaining a donation or offering sexual
services. It's obvious that the narrower construction is at least
plausible: It's consistent with a dictionary meaning of the term,4
as well as its common understanding. It's also the more plau-
sible meaning, given that the ordinance specifically refers to
soliciting employment, which is hard to do while a car is
moving. Another important clue is part (b) of the ordinance,
which prohibits stopping a vehicle so someone inside can hire
or attempt to hire someone outside. Part (b) thus clearly
zeroes in on face-to-face communication between people on
the sidewalk and people inside the stopped vehicle, which is
entirely consistent with a narrow reading of the term ™solicit∫
in part (a). It doesn't matter whether the narrow reading of
™solicit∫ is the more plausible; it is enough that it's a plausible
meaning, which means we must adopt it rather than striking
down the law as unconstitutional. This is a fundamental prin-
ciple of constitutional law each of us learned during our first
year of law school, but some of us seem to have forgotten it.
My colleagues in the majority claim that ™solicit∫ is ™not
reasonably susceptible∫ to this narrower reading, maj. op. at
17649, but I can't believe they really mean it. How can you
argue with the dictionary? The interpretation of ™solicit∫ the
majority now rejects as implausible is also the meaning we
4
As the majority acknowledges, maj. op. at 17648, the third edition of
Webster's New International Dictionary defines ™solicit∫ as ™to make peti-
tion to∫ and ™esp[ecially]: to approach with a request or plea (as in selling
or begging).∫ Webster's New International Dictionary 2169 (3d ed. 1981).
This very clearly contemplates a face-to-face interaction. And the sainted
Webster's Second defines ™solicit∫ as: ™To make petition to; to entreat;
importune; as, to solicit the king for relief; now, often, to approach with
a request or plea, as in selling, begging, etc.; as, to solicit one's neighbors
for contributions.∫ Webster's New International Dictionary 2393 (2d ed.
1939). The notion of approaching someone physically–as a day laborer
or street walker must approach a parked car to solicit employment–seems
a well-entrenched meaning of the term.
We're each entitled to our own view of the law but not to our own lan-
guage.
17674 COMITE DE JORNALEROS v. REDONDO BEACH
ourselves have given that term for a quarter-century. See
ACORN, 798 F.2d at 1268. Rejecting an obvious and sensible
interpretation of a common word as implausible will cause
profound disruptions in many corners of our law, such as the
application of Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), where we must
determine whether an agency's interpretation of a statute is
plausible.
But it gets stranger still: Redondo Beach didn't just pick the
word ™solicit∫ out of thin air; it did so in reliance on our own
construction of the term in ACORN. The record contains a
1987 memorandum by the then City Attorney telling the
Mayor and City Council that ™[t]he proposed ordinance is
identical to one recently approved by the 9th circuit court of
appeals,∫ and another written by him a year later describing
the ordinance as ™prohibiting standing on a street or highway
to solicit employment from the occupants of vehicles∫
(emphasis added). Accordingly, this ™statute was based spe-
cifically on the Phoenix ordinance upheld by the Ninth Circuit
in ACORN.∫ At oral argument, the City Attorney reiterated:
™We took what this court said this ordinance meant. We've
enforced this ordinance in the manner in which this court said
it was to be enforced.∫ For us now to find Redondo Beach's
ordinance ™not reasonably susceptible∫ to an interpretation the
city adopted by slavishly copying language we ourselves
approved is so strange I have trouble wrapping my head
around it.5
5
The majority cites Board of Airport Commissioners of L.A. v. Jews for
Jesus, Inc., 482 U.S. 569 (1987), to support its conclusion that the ordi-
nance can't be salvaged by a narrow reading. Maj. op. at 17649. That case
proves just how wrong my colleagues are. The restriction struck down
there banned all ™First Amendment activities within Central Terminal
Area at Los Angeles International Airport.∫ Jews for Jesus, 482 U.S. at
571. When the law in question is an absolute prohibition of constitution-
ally protected activities, there is no way to read it narrowly. Here, we have
an ordinance that uses common language that can be read narrowly. Our
case has nothing in common with Jews for Jesus.
COMITE DE JORNALEROS v. REDONDO BEACH 17675
If ordinary English and common sense weren't enough, the
history of the ordinance shows quite clearly that the city
adopted it to deal with a festering problem: men standing on
street corners soliciting work from motorists. Patrol Field Ser-
geant Rody Contreras, who's served in the Redondo Police
Department since 1986, reports that ™[f]or approximately 15
years, the City of Redondo Beach has experienced numerous
traffic problems with day laborers who solicit employment at
the intersection of Artesia Boulevard and Felton Lane, and at
the intersection of Manhattan Beach Boulevard and Ingle-
wood Avenue. . . . The Department has received numerous
complaints from business owners and residents . . . that the
day laborers interrupt the flow of traffic while they contact
employers from the City sidewalks and streets[,] . . . commit
acts of vandalism, litter, [and] urinate . . . .∫ City Attorney
Michael Webb reports that the city ™has received complaints
regarding day laborers congregating on street corners at least
as far back as 1981. Residents and business owners have com-
plained that the day laborers overcrowd the sidewalks, inter-
rupting the flow of traffic when they contact potential
employers; litter; urinate near businesses and in the bush areas
of private residences; harass females; and damage property.∫
In 1987, the then City Attorney wrote to the Mayor and
City Council supporting what eventually became part (a) of
the ordinance: ™As the Mayor and Council are aware[,] the
City has had extreme difficulties with persons soliciting
employment from the sidewalks . . . over the last several
years. . . . There can be little question that traffic and safety
hazards occur by this practice.∫ The City Attorney urged pas-
sage of ™the proposed ordinance[, which] is identical to one
recently approved by the 9th circuit court of appeals,∫ refer-
ring to our decision in ACORN, 798 F.2d 1260. When the city
moved to enhance the ordinance in 1988 by adding part (b),
the City Attorney reiterated these justifications: ™This ordi-
nance was designed to alleviate sidewalk congestion and traf-
fic hazards which occurred when large numbers of persons
17676 COMITE DE JORNALEROS v. REDONDO BEACH
congregated on the sidewalks during the rush hours to obtain
temporary employment.∫
Supporting the 1988 amendment, the North Redondo Beach
Business Association wrote to the Mayor complaining about
™the gathering of day laborers.∫ The Association commented:
™We all know this problem has existed for many years. We
noticed that it almost diminished shortly after [part (a) of] the
ordinance was passed [but] realize that unless there is cons-
tant re-enforcement, the problem resurfaces on a frequent
basis.∫
In response, the Mayor wrote to the City Council, noting
™the recurring gathering of day laborers.∫ She urged ™that
appropriate actions be taken to eliminate this problem of con-
gregating day laborers.∫ This produced part (b) of the ordi-
nance, which applies to motorists who stop to pick up day
laborers: ™By adopting this amendment, both the prospective
employee and employer would be subject to a misdemeanor
offense for soliciting the other from a street or highway.∫
With both parts of the ordinance in place, city officials
launched vigorous efforts like the ™Day Laborer Enforcement
Project∫ to clean up their city in ways not previously possible.
There was no ™Girl Scout Cookie Enforcement Project,∫
™Lemonade Stand Enforcement Project,∫ ™Push-Cart Vendor
Enforcement Project∫ or any other of the horrible abuses the
majority fears the ordinance will be subject to.
The drafting and enforcement history is thus entirely con-
sistent with a commonsense reading of the ordinance as
applying only to people on sidewalks looking to stop passing
motorists so they can deal with them. The city enforces the
ordinance consistent with this narrow meaning. Sergeant Con-
treras, in a sworn declaration, reports that in enforcement
operations ™[d]ay laborers were only contacted and arrested
when they were on the sidewalk and approached a stopped
vehicle. The prospective employer who was charged with vio-
lation of [the ordinance] was contacted because he stopped in
COMITE DE JORNALEROS v. REDONDO BEACH 17677
a traffic lane to conduct a hiring discussion with day labor-
ers.∫
There is no evidence that the city has ever enforced, threat-
ened to enforce or dreamt of enforcing the ordinance against
sidewalk food vendors, tyke lemonade moguls, Girl Scout
cookie peddlers, high school car washers, disaster relief solic-
itors or middle-aged men cruising neighborhoods looking to
pick up teenage girls from their front yards. Plaintiff has
shown none of the realistic dangers that the Supreme Court
said must be shown in making a facial challenge. Vincent, 466
U.S. at 801.
City Attorney Webb declares that the city ™interprets and
enforces the Ordinance as prohibiting solicitations that cause
drivers of motor vehicles to stop in traffic.∫ As the Supreme
Court has instructed us, when considering a ™facial challenge,
we must consider the [city]'s authoritative constructions of
the ordinance, including its own implementation and interpre-
tation of it.∫ Forsyth Cnty. v. Nationalist Movement, 505 U.S.
123, 131 (1992).
The majority turns up its collective nose at the city's prof-
fered interpretation as somehow not authoritative enough,
maj. op. at 17647-50, but I'm at a loss to understand why a
declaration from the city's top law enforcement official
doesn't cut the mustard. Time and again, the Supreme Court
has accepted the construction of a statute proffered by a state,
county or city. See, e.g., Forsyth Cnty., 505 U.S. at 131; Ward
v. Rock Against Racism, 491 U.S. 781, 795 (1989); Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 494 n.5 (1982); Grayned v. City of Rockford, 408 U.S.
104, 110 (1972). In Forsyth, the Court explained that it con-
sidered the county's own interpretation to be ™authoritative∫:
™In the present litigation, the county has made clear how it
interprets and implements the ordinance.∫ 505 U.S. at 131
17678 COMITE DE JORNALEROS v. REDONDO BEACH
(emphasis added). If that's good enough for the Supreme
Court, why isn't it good enough for us?6
My colleagues reject the city's proposed construction with
the excuse that they ™cannot simply presume the City will act
in good faith and adhere to standards absent from the ordi-
nance's face.∫ Maj. op. at 17649 (internal quotation marks
and alterations omitted). Good faith has nothing to do with it.
If we construe the ordinance to avoid constitutional concerns,
our interpretation then defines what the ordinance means. If
the city were to enforce it more broadly in the future, it would
be subject to a swift injunction: Not only would it be barred
by the law of the circuit, judicial estoppel would also preclude
it from pressing a broader reading of the ordinance in a future
case. See, e.g., New Hampshire v. Maine, 532 U.S. 742,
749-51 (2001). In other words, if Redondo Beach were to win
here based on its proffered construction, it would be stuck
with it.
The majority also argues that the ordinance is overbroad
because the city has less intrusive means to deal with the
problem, such as enforcing existing traffic laws. Maj. op. at
17654-55. But city authorities have tried for years to use other
laws to deal with day laborers. Sergeant Contreras recounts
that ™[n]umerous warnings, both verbal and written, have
been given to the day laborers over the years, which have had
6
The majority argues that: ™Apparently the Dissent agrees with us that
the City's proposed interpretation is untenable.∫ Maj. op. at 17649 n.4.
Nice try. In fact, I disagree with every word in the opinion, including
™the,∫ ™and∫ and ™or.∫ Here's what the city actually argues: ™The Ordi-
nance is enforced only against solicitors who stand on the sidewalk or
street and cause motorists to stop in traffic lanes in response to the solici-
tation.∫ Blue Brief at 13. The city is saying that it interprets the ordinance
as using ™solicit∫ in the narrow sense–that is, involving a face-to-face
interaction. Individuals such as street vendors, day laborers and street
walkers, who seek to have face-to-face interactions with motorists, cause
them to stop; there's no other way to do business with someone in a mov-
ing vehicle. Obviously, I agree with this argument–contrary to what my
colleagues in the majority seem to think.
COMITE DE JORNALEROS v. REDONDO BEACH 17679
little or no effect on the problems they create. Random
enforcement has proven to be ineffective or only a temporary
solution.∫ City Attorney Webb informs us that, over the past
three decades, ™[t]he City made numerous efforts to address
these complaints, including enforcement of other applicable
laws, but these efforts were largely unsuccessful.∫7 Business
7
The majority dismisses Webb's declaration as inadmissible. Maj. op.
at 17655 n.9. But material produced at the summary judgment stage need
not be in the form of admissible evidence. It's for that reason that Federal
Rule of Civil Procedure 56(c)(1)(B) directs the court's inquiry to whether
™an adverse party cannot produce admissible evidence to support the
fact∫; that 56(c)(2) permits a party to ™object that the material cited to sup-
port or dispute a fact cannot be presented in a form that would be admissi-
ble in evidence∫; and that 56(c)(4) requires that affidavits ™set out facts
that would be admissible in evidence∫ (emphases added). Rule 56 is pre-
cisely worded to exclude evidence only if it's clear that it cannot be pre-
sented in an admissible form at trial.
Accordingly, we held in Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003), that, ™[a]t the summary judgment stage, we do not focus on the
admissibility of the evidence's form. We instead focus on the admissibility
of its contents.∫ Similarly, in Block v. City of L.A., 253 F.3d 410, 418-19
(9th Cir. 2001), we held that, ™[t]o survive summary judgment, a party
does not necessarily have to produce evidence in a form that would be
admissible at trial, as long as the party satisfies the requirements of Fed-
eral Rules of Civil Procedure 56.∫ See also Adam N. Steinman, The Irre-
pressible Myth of Celotex: Reconsidering Summary Judgment Burdens
Twenty Years After the Trilogy, 63 Wash. & Lee L. Rev. 81, 130 (2006)
(™Materials offered in opposition to summary judgment . . . are not offered
to establish the truth of the matter asserted. They are offered to establish
a genuine issue of material fact for trial.∫). As Fraser and Block make
clear, the question at summary judgment is not whether the form of the
evidence presented is admissible, but whether the content is. At trial, the
city could easily present admissible evidence of what's in Webb's declara-
tion. For example, former city officials could testify to their personal rec-
ollection about their failed attempts to address the city's day laborer
problem with ordinances predating this one.
In its Herculean effort to suppress portions of the record it doesn't like,
see also pp. 17668-69 n.1 supra, the majority upends thus yet another line
of authority that stands in its way, sub silentio overruling Fraser and
Block. And, in what has now become its calling card, the majority doesn't
bother giving the parties an opportunity to brief the issue before mowing
down our long-established case law. One must wonder whether the major-
ity is even aware of the cases it casually tramples underfoot.
17680 COMITE DE JORNALEROS v. REDONDO BEACH
leaders complained that, ™unless there is constant re-
enforcement, the problem resurfaces on a frequent basis.∫ I
suppose Redondo Beach could park a patrol car and two offi-
cers permanently at each of the affected locations to make
sure no one violates the parking and littering laws, but this is
an extraordinary expense for a small city to bear. Nothing in
the First Amendment commands such a sacrifice.
The bottom line is that city officials, after years of effort,
found existing tools inadequate or too expensive to rid the
city's streets of day laborers. Appointing themselves as a
Super City Council, my colleagues–who need not answer to
the voters–decide that they know how to run Redondo Beach
better than its elected officials. Id. at 17654-55 (giving helpful
advice as to which laws to enforce to get rid of the problem).
This kind of overreaching can only lead to erosion of public
confidence in the judiciary. For my part, if city officials swear
under oath that they have tried to use existing laws to no
avail, I will take their word for it–especially when there is
nothing but judicial speculation to contradict them.
In a remarkable passage, the majority claims the ordinance
is ™geographically overinclusive∫ because it ™applies citywide
to all streets and sidewalks in the City, yet the City has intro-
duced evidence of traffic problems only with respect to a
small number of major streets and medians.∫ Id. at 17653.
This is a new one on me. Since when are cities and states pre-
cluded from passing laws of general applicability because
problems manifest themselves only at specific locations? How
exactly is a city to ensure that a problem cured by a spot ordi-
nance at one location won't migrate elsewhere? Are city offi-
cials truly precluded by the First Amendment from exercising
This will be another alarming signal to members of our bar, instructing
them that they can no longer proffer shorthand previews of potential evi-
dence at the summary judgment stage but must prepare and submit the
entire trial record. We will rue the day we started down this perilous path.
COMITE DE JORNALEROS v. REDONDO BEACH 17681
legislative judgment in dealing with the city's current and
future problems in a citywide ordinance?
Finally, the majority brushes aside the possibility of saving
part of the ordinance. Id. at 17656 n.10. This is surprising, as
there are very good reasons for severing part (b) from part (a).
Each part deals with a different aspect of the problem: (a) reg-
ulates day laborers and (b) regulates those who drive by and
try to hire them. They address fundamentally different con-
duct, by different groups of people; the sections were passed
at different times; and each section can stand without the
other's help. Indeed, when it comes to construing the two sec-
tions, the majority treats them as if they're totally unrelated,
refusing to read part (a) narrowly in light of part (b). But
when it comes to throwing them overboard, the majority
shackles them together.
Virtually all of the problems the majority has imagined
apply to part (a) of the ordinance, not to part (b). Part (b) can
easily stand on its own and would achieve a good deal of the
city's objective, much as an ordinance prohibiting the patron-
izing of streetwalkers, if enforced, would go a long way
toward cleaning up a red light district. If my colleagues are
bent on striking down the entire ordinance, they must find
something wrong with part (b) independent of part (a). This
they never do.
For a federal court to strike down a state law as constitu-
tionally repugnant is an exercise of enormous power; it strains
federal-state relations and undermines popular sovereignty by
limiting the authority of elected officials to serve their constit-
uents. It's a power we should exercise cautiously and
narrowly–as a scalpel rather than a machete. One way of
diminishing this tension is for a court to invalidate only that
part of an offending statute that runs afoul of the Constitution
and leave in place those portions that are valid. This usually
causes the least damage to the statutory scheme, and thus the
least friction between the federal government and the states.
17682 COMITE DE JORNALEROS v. REDONDO BEACH
It is for that and many other reasons the prudent thing to do.
See, e.g., Brockett v. Spokane Arcades, Inc., 472 U.S. 491,
501-07 (1985) (severing a state statute after striking down
part of it on First Amendment grounds); Marsh v. Alabama,
326 U.S. 501, 509-10 (1946) (striking down on First Amend-
ment grounds only a single application of a state statute);
Cantwell v. Connecticut, 310 U.S. 296, 307-11 (1940) (strik-
ing down on First Amendment grounds a state statute only
with respect to one application of it); see also Ayotte v.
Planned Parenthood of N. New England, 546 U.S. 320,
328-31 (2006) (striking down on First Amendment grounds a
state statute but remanding for a determination of severabil-
ity); City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S.
750, 772 (1988) (doing the same for a city ordinance). See
generally David H. Gans, Severability as Judicial Lawmak-
ing, 76 Geo. Wash. L. Rev. 639, 653 (2008) (™Severability
doctrine avoids [a] disastrous state of affairs [by] permit[ting]
a court to save as much as it can of the legislature's handi-
work . . . .∫). As the Supreme Court instructs us, it is ™the nor-
mal rule that partial, rather than facial, invalidation is the
required course.∫ Brockett, 472 U.S. at 504.
Not all statutes are readily severable. Sometimes the
offending provision is so intertwined with other parts of the
statute that it's impossible to sever only the offending part; at
other times, severing just one key part of the statute so distorts
the statutory purpose that it's more prudent to strike down the
whole. See, e.g., Randall v. Sorrell, 548 U.S. 230, 262 (2006)
(striking down a state statute on First Amendment grounds
and finding that ™to sever provisions . . . would require us to
write words into the statute∫); Hill v. Wallace, 259 U.S. 44,
70 (1922) (refusing to sever a federal statute despite the pres-
ence of a severability clause because the unconstitutional sec-
tion was ™so interwoven∫ that other sections ™cannot be
separated. None of them can stand.∫).
In general, however, severing the offending provision is the
more prudent course. This is the view adopted by the Califor-
COMITE DE JORNALEROS v. REDONDO BEACH 17683
nia Supreme Court in Gerken v. Fair Political Practices
Comm'n, 863 P.2d 694 (Cal. 1993), where it reaffirmed a
three-part test for when severance is appropriate: ™[T]he
invalid provision must be grammatically, functionally, and
volitionally separable.∫ Id. at 698 (internal quotation mark
omitted). The Supreme Court has made clear that
™[s]everability of a local ordinance is a question of state law,∫
Lakewood, 486 U.S. at 772, so we must adhere to the state
supreme court's view as to whether to strike down the ordi-
nance in its entirety or only in part.
Part (b) of Redondo Beach's ordinance breezes through the
Gerken test. Grammatically, it's an obvious stand-alone.
Functionally, it targets potential employers of day laborers
and operates just fine on its own. And volitionally, there's
every reason to believe that the city ™would have separately
considered and adopted [it] in the absence of the invalid por-
tions.∫ Gerken, 863 P.2d at 699 (internal quotation mark omit-
ted). Indeed, the city adopted part (b) of the ordinance twenty
months after part (a). Thus, if the majority is going to strike
down any portion of section 3-7.1601, it should strike down
only part (a) and leave intact part (b), whose constitutionality
no one has colorably called into question.
The majority insists, yet again, that the city waived the
issue. Maj. op. at 17656 n.10. It's true that litigants typically
must present arguments for courts to adopt, but severability's
not a typical argument. Severability comes into play as a court
fashions its remedy upon finding part of a statute unconstitu-
tional. Having reached that conclusion, the court can't escape
the question of how much of the statute to take down. It is an
inherent part of the process of constitutional adjudication, and
we certainly shouldn't make our default to take down every-
thing. To the contrary, we should presumptively preserve as
much as possible.
The very case cited by my colleagues illustrates this point.
In Legal Services Corp. v. Velazquez, 531 U.S. 533, 549
17684 COMITE DE JORNALEROS v. REDONDO BEACH
(2001), the Court did not find severability waived, though it
wasn't ™discussed in the briefs of either party or otherwise
contested here.∫ Instead, the Court simply exercised its ™dis-
cretion and prudential judgment∫ in declining to address it. Id.
And the Court made even clearer in Brockett that it could and
would opt for severability even when the state didn't seek it.
The plaintiffs in Brockett argued that, ™given that appellants
did not argue `severability' in the Court of Appeals, they are
precluded from raising it in this Court on appeal.∫ Brief for
All Appellees at 44, Brockett, 472 U.S. 491 (Nos. 84-28 and
84-143). But, after finding a part of the statute unconstitu-
tional, the Supreme Court deemed it ™quite evident that the
remainder of the statute retains its effectiveness . . . . In these
circumstances, the issue of severability is no obstacle to par-
tial invalidation, which is the course the Court of Appeals
should have pursued.∫ Brockett, 472 U.S. at 507; see also
United States v. Booker, 543 U.S. 220, 322 (2005) (Thomas,
J., dissenting in part) (discussing instances where the Supreme
court has applied severability when ™the parties in those cases
could have raised the issue of severability, but did not bother,
because (as is often the case) there was no arguable reason to
defeat the presumption of severability∫); Velazquez, 531 U.S.
at 559 (Scalia, J., dissenting) (™Although no party briefed sev-
erability in Denver Area Ed. Telecommunications Consor-
tium, Inc. v. FCC, 518 U.S. 727 (1996), the Justices finding
partial unconstitutionality considered it necessary to address
the issue. Id., at 767 (plurality opinion) (`[W]e must ask
whether ß 10(a) is severable'); accord, New York v. United
States, 505 U.S. 144, 186 (1992). I think we have that same
obligation here.∫). Even when the Supreme Court ultimately
rejects severability, it still considers it as a possibility even if
the parties made no mention of the issue in their briefs. See,
e.g., Randall, 548 U.S. at 262. It's diametrically opposed to
the Supreme Court's practice for my colleagues to dismiss on
waiver grounds the obvious possibility of severability here.
I find it heavy-handed and arbitrary for the majority to take
down part (b) of the ordinance even though no one–not the
COMITE DE JORNALEROS v. REDONDO BEACH 17685
parties, not the majority, not the district court–has suggested
in any way that it's unconstitutional standing on its own.
That's like taking out a healthy gall bladder because you've
removed an abscessed appendix. The majority obviously
needs schooling in the Hippocratic oath.
***
I add only a few words about Judge Smith's concurrence
which, fortunately, a majority of the court abjures. According
to Judge Smith, the ordinance suffers from two additional
constitutional infirmities: It's not content-neutral and it
doesn't leave adequate alternative channels for communica-
tion. The first point is foreclosed by Hill v. Colorado, 530
U.S. 703 (2000), as even the concurrence seems to recognize.
Special Concurrence at 17661-63 (™I recognize that the
Supreme Court's decision in Hill v. Colorado, 530 U.S. 703
(2000), could be read to cast some doubt upon this conclu-
sion.∫). Perhaps Judge Smith's critique of Hill will persuade
the Court to take up our case and overrule Hill but, until it
does, we are wise to decide our case consistent with it.
As for adequate alternative channels of communication, no
one prohibits the day laborers from advertising in the newspa-
per or on Craigslist–and many do. Others participate in the
six day-laborer centers in Southern California. The centers are
easy to find and patrons interested in hiring day laborers can
travel to them with a minimum of inconvenience. It is, of
course, easier to hire laborers nearby, but there is a crucial
difference between having no alternatives and having slightly
inconvenient alternatives. See, for example, Appendix 3.
***
Judge Gould strikes down the ordinance because the city
fails to establish a dedicated day laborer solicitation area. But
why does every city need to set aside an area for day laborers
17686 COMITE DE JORNALEROS v. REDONDO BEACH
to congregate? I'm aware of no such constitutional mandate,
and it strikes me as overkill.
There are 482 municipalities in California–eighty-eight in
Los Angeles County alone–and they range from Los Ange-
les, with almost 3.8 million people and over 500 square miles,
to Amador City, with just 185 people and less than one-third
of a square mile. Indeed, Redondo Beach is one of nine
municipalities tucked along a twelve-mile stretch of coastline.
Following the coast north to south, there are El Segundo
(16,654 people, 5.5 square miles), Manhattan Beach (35,135
people; 3.9 square miles), Hermosa Beach (19,506 people; 1.4
square miles), Redondo Beach (66,748 people; 6.2 square
miles), Palos Verdes Estates (13,438 people; 4.8 square
miles), Rancho Palos Verdes (41,643 people; 13.5 square
miles), Rolling Hills Estates (8067 people; 3.6 square miles)
and Rolling Hills (1860 people; under three square miles).
Towering over all of this is gigantic Torrance (145,438 peo-
ple; 20.6 square miles).
I see no basis for requiring every single one of these mini-
municipalities to ™designate[ ] a permissible area for day
laborer solicitation,∫ concurrence at 17657, whether it encom-
passes 500 square miles or just 1/1500 of that, or whether it's
overwhelmingly residential, like Rolling Hills Estates, or
almost entirely commercial, like the City of Industry with its
219 residents and 80,000 jobs. And it's positively outre to do
so while chastising the majority for ™mak[ing] it so hard for
municipalities . . . that these municipalities cannot achieve
important public goals.∫ Id. As Appendix 3 shows, denizens
of Redondo Beach can drive just six miles outside their city
and find day laborers waiting to be hired. Why isn't that close
enough? Where in our First Amendment law does it say that,
if you live in Redondo Beach, you must have nine day-laborer
solicitation centers within a ten-minute drive?
***
COMITE DE JORNALEROS v. REDONDO BEACH 17687
I would vacate the judgment of the district court and
remand with instructions that it enter judgment for defendant.
17688 COMITE DE JORNALEROS v. REDONDO BEACH
Appendix 1
COMITE DE JORNALEROS v. REDONDO BEACH 17689
17690 COMITE DE JORNALEROS v. REDONDO BEACH
Appendix 2
COMITE DE JORNALEROS v. REDONDO BEACH 17691
Appendix 3