Menotti v. City of Seattle

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTOR MENOTTI; THOMAS 

SELLMAN; TODD STEDL; DOUG

SKOVE,

Plaintiffs-Appellants,

v.

No. 02-35971

CITY OF SEATTLE; PAUL SCHELL,

Former Mayor of the City of  D.C. No.

Seattle; NORMAN STAMPER, Former CV-00-00372-BJR

Chief of Police of the City of

Seattle; SHARON STEVENS, a Seattle

Police Detective; RONALD SMITH, a

Seattle Police Officer,

Defendants-Appellees.



KENNETH HANKIN; JENNIFER 

HUDZIEC; STEPHANIE LANE; DENISE

COOPER; NICOLE PEARSON; on

behalf of themselves and all others

similarly situated;

No. 02-36027

Plaintiffs-Appellants,

v.  D.C. No.

CV-00-01672-BJR

CITY OF SEATTLE; PAUL SCHELL,

OPINION

Former Mayor of the City of

Seattle; NORMAN STAMPER, Former

Chief of Police of the City of

Seattle,

Defendants-Appellees.



5945

5946 MENOTTI v. CITY OF SEATTLE

Appeal from the United States District Court

for the Western District of Washington

Barbara J. Rothstein, District Judge, Presiding

Argued and Submitted February 6, 2004

Submission Vacated February 17, 2004

Resubmitted April 14, 2004

Seattle, Washington

Filed June 2, 2005

Before: Ronald M. Gould, Richard A. Paez, Circuit Judges,

and Roslyn O. Silver,* District Judge.

Opinion by Judge Gould;

Partial Concurrence and Partial Dissent by Judge Paez

*The Honorable Roslyn O. Silver, United States District Judge for the

District of Arizona, sitting by designation.

5950 MENOTTI v. CITY OF SEATTLE

COUNSEL

James E. Lobsenz, Carney Badley Spellman, P.S., and Aaron

H. Caplan, American Civil Liberties Union of Washington,

Seattle, Washington, for appellants Victor Menotti, Thomas

Sellman, Todd Stedl, and Doug Skove.

Steve W. Berman, Hagens Berman LLP, Seattle, Washington,

Arthur H. Bryant, Trial Lawyers for Public Justice, Oakland,

California, and Michael E. Withey, Stritmatter Kessler Whe-

lan Withey Coluccio, Seattle, Washington, for appellants

Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise

Cooper, and Nicole Pearson.

Ted Buck, Stafford Frey Cooper, P.C., Seattle, Washington,

for the appellees.

MENOTTI v. CITY OF SEATTLE 5951

OPINION

GOULD, Circuit Judge:

In this case we search for the proper balance between, on

the one hand, the vibrant rights of free speech and assembly

in an open society and, on the other hand, the needs of a city

to maintain order and security. We consider the constitution-

ality of an emergency order prohibiting access to portions of

downtown Seattle, Washington, during the 1999 World Trade

Organization (WTO) conference. Appellants filed lawsuits in

the United States District Court for the Western District of

Washington seeking damages for the constitutional rights that

were alleged to be violated by the emergency order. Four of

the Appellants also filed individual claims in which they

alleged that their constitutional rights were infringed by Seat-

tle police officers in the course of the conference. We deter-

mine that the emergency order was a constitutional time,

place, and manner restriction on speech on its face, and we

affirm the judgment of the district court on that issue. But we

also determine that there are genuine issues of material fact

whether the emergency order was constitutional as applied to

certain Appellants, and we reverse and remand for trial on

that issue. As for the Appellants’ individual claims, we affirm

in part, reverse in part, and remand.

I

On October 2, 2000, Plaintiffs-Appellants Kenneth Hankin,

Jennifer Hudziec, Stephanie Lane, Denise Cooper, and Nicole

Pearson (the Hankin plaintiffs)1 filed suit against the City of

Seattle, then-Seattle Mayor Paul Schell, and then-Seattle

Police Chief Norman Stamper in the United States District

Court for the Western District of Washington, on behalf of a

class defined as:

1

Robert Hickey, Carroll Jackson, and Emily Maloney were also named

plaintiffs in the lawsuit, but they are not parties to this appeal.

5952 MENOTTI v. CITY OF SEATTLE

All persons who were arrested by the City of Seattle

and its police agents or its affiliated police agents on

December 1 and 2, 1999, pursuant to the defendants’

“no protest” policies and directives which were

eventually embodied by the City of Seattle’s Local

Proclamation of Civil Emergency Order Number 3

(and subsequent revisions) and who were subse-

quently not convicted of any crime. Included in this

class are all persons arrested pursuant to such poli-

cies both inside and outside the zone established by

Order Number 3.

The Hankin plaintiffs sought damages, alleging that defen-

dants violated their rights under the United States Constitu-

tion. The Hankin plaintiffs also requested declaratory relief

stating that the emergency order violated the United States

Constitution.

On March 7, 2000, Victor Menotti, Thomas Sellman, Todd

Stedl and Doug Skove (the Menotti plaintiffs) filed a lawsuit

against the City of Seattle, Schell, Stamper, and Officer

Michael Jennings and Detective Sharon Stevens of the Seattle

Police Department.2 The Menotti plaintiffs filed an amended

complaint on January 9, 2002, adding Seattle Police Depart-

ment Officer Ronald Smith as a defendant. The Menotti plain-

tiffs alleged that defendants violated their rights under the

First, Fourth, and Fourteenth Amendments to the United

States Constitution and sought damages. Menotti and Sellman

also alleged that defendants committed false arrest.

The district court consolidated the two cases for the pur-

pose of resolving legal issues common to all parties. On Octo-

ber 29, 2001, the district court granted the defendants’ motion

for partial summary judgment regarding the constitutionality

2

Andrew Russell, Lauren Holloway, and Ronald Matyjas were also

plaintiffs in the lawsuit, but they are not part of this appeal. Officer Jen-

nings is also not part of this appeal.

MENOTTI v. CITY OF SEATTLE 5953

of the emergency order, holding that as applied it was a con-

stitutional time, place, and manner restriction on speech. The

district court concluded that the emergency order: (1) was

content neutral in that it did not exclude speech based on con-

tent or viewpoint, (2) was narrowly tailored because it “cov-

ered only enough territory for the WTO delegates and the

President [of the United States] to move safely from their

hotels to the convention [center] and lasted only during the

conference,” (3) served a significant government interest of

maintaining order in an emergency situation, and (4) provided

ample alternatives for expression because protestors could

demonstrate just outside the boundaries of the restricted zone.

The district court denied the plaintiffs’ cross-motion for

summary judgment on the constitutionality of the emergency

order as applied. The district court also granted the City’s

motion for summary judgment on the Hankin plaintiffs’

claims under 42 U.S.C. § 1983 alleging a failure to train or

supervise officers, holding that the Hankin plaintiffs had not

presented any evidence supporting this contention.

On January 8, 2002, the district court denied the Hankin

plaintiffs’ motion for class certification. On August 29, 2002,

the district court granted summary judgment to all defendants

as to the Hankin plaintiffs’ remaining claims, based on the

district court’s ruling of the constitutionality of the emergency

order. The district court entered final judgment as to the

Hankin plaintiffs pursuant to Fed. R. Civ. P. 54(b) on Novem-

ber 5, 2002.

As for the lawsuit filed by the Menotti plaintiffs, the district

court on November 1, 2001, denied the Menotti plaintiffs’

motion for partial summary judgment based on the alleged

federal constitutional violations. On January 14, 2002, the dis-

trict court, based on its ruling that the emergency order was

constitutional, granted the defendants’ motion for summary

judgment as to Sellman’s claims. However, the district court

denied the defendants’ motion for summary judgment as to

5954 MENOTTI v. CITY OF SEATTLE

the claims of Skove and Stedl, finding that genuine issues of

material fact existed as to the circumstances of their arrests.

On January 14, 2002, the district court also granted defen-

dants’ motion to dismiss the Menotti plaintiffs’ claims against

Schell and Stamper in their individual capacities, holding that

the Menotti plaintiffs had not provided any evidence showing

that Schell or Stamper were personally involved in the seizure

or arrest of these plaintiffs.

On August 15, 2002, the district court granted Officer

Smith’s motion for summary judgment based on qualified

immunity as to Skove’s claims. The district court determined

that Smith was entitled to qualified immunity on Skove’s

Fourth Amendment claim because Smith had acted reason-

ably, and further that Smith was entitled to qualified immu-

nity on Skove’s First Amendment claim because no

constitutional violation had occurred. The district court denied

Skove’s cross-motion for summary judgment on the same

claims.

Finally, on October 1, 2002, the district court granted sum-

mary judgment to the City on Menotti and Stedl’s claims

under 42 U.S.C. § 1983, holding that there was probable

cause to arrest Menotti, and that Menotti and Stedl had sub-

mitted no evidence of a municipal policy or custom of ille-

gally seizing or searching handbags. The district court entered

final judgment as to the Menotti plaintiffs on October 1, 2002.

The Menotti plaintiffs filed a timely notice of appeal on

October 23, 2002. The Hankin plaintiffs filed a timely notice

of appeal on November 13, 2002. We have jurisdiction under

28 U.S.C. § 1291, and we affirm in part, reverse in part, and

remand.

II

In reviewing de novo the district court’s grant of summary

judgment, where the facts are disputed we view the evidence

MENOTTI v. CITY OF SEATTLE 5955

in the light most favorable to the non-moving party. United

States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir. 2003).

We determine whether there are any genuine issues of mate-

rial fact and whether the district court correctly applied the

relevant substantive law. We do not weigh the evidence or

determine the truth of disputed material facts, but determine

only whether there is a genuine issue for trial. Balint v. Car-

son City, 180 F.3d 1047, 1054 (9th Cir. 1999) (en banc).

The WTO is an international group comprised of member

nations that discuss trade issues and enter into trade agreements.3

In January 1999, the White House announced that the City of

Seattle, Washington (the City) had been selected as the loca-

tion for the first WTO conference to be held in the United

States. The conference was to take place from November 30,

1999 to December 3, 1999. Representatives from the 134

WTO-member nations,4 including the President of the United

States, were to convene in Seattle.

Those who opposed the WTO’s agenda and specific activi-

ties convened in Seattle well in advance of the opening of the

conference, and protest activity began taking place. Three

weeks before the opening of the conference, unknown indi-

viduals broke windows at a Gap clothing store in downtown

3

The WTO was established on January 1, 1995, during the Uruguay

Round negotiations held pursuant to the General Agreement on Tariffs and

Trade. According to its web site, the WTO “is the only global international

organization dealing with the rules of trade between nations. At its heart

are the WTO agreements, negotiated and signed by the bulk of the world’s

trading nations and ratified in their parliaments. The goal is to help pro-

ducers of goods and services, exporters, and importers conduct their busi-

ness.” What is the WTO?, at http://www.wto.org/english/thewto_e/

whatis_e/whatis_e.htm (last visited Oct. 7, 2004). The WTO’s objectives

have generated a vigorous opposition by those who believe that the WTO

“favor[s] trade expansion over all else.” Lynda Gorov, The Varied Foes

of WTO Unite in Seattle Protests, Boston Globe, Nov. 30, 1999, at A1.

4

As of the filing date of this Opinion, the WTO has 148 member

nations.

5956 MENOTTI v. CITY OF SEATTLE

Seattle and threw several “Molotov cocktails”5 into the build-

ing, causing substantial damage. The “anarchist”6 symbol was

spray-painted onto the walls of the Gap store and on the

adjoining sidewalk. Other protestors attempted to gain entry

into downtown Seattle offices of timber and forest product

companies. Protestors trespassed onto downtown Seattle’s

Old Navy store, and hung a huge protest banner on the face

of the storefront. On November 26, 1999, the day after

Thanksgiving, a group of fifty to sixty protestors entered a

parade without permission to protest the WTO.

Protest activity began to intensify on November 29, 1999,

one day ahead of the WTO conference. While most protestors

were peaceful, others were violent. The level of violence can-

not be considered de minimis and in some cases posed threats

to persons.7 Some protestors vandalized property by spray

5

A “Molotov cocktail” is an explosive device consisting of “a bottle,

gasoline, and a rag.” United States v. Simmons, 83 F.3d 686, 687 (4th Cir.

1996).

6

“The anarchist movement represents a range of groups, from organized

and primarily nonviolent groups like the Industrial Workers of the World

to loosely knit and more extremist splinter groups . . . .” Ruth Teichroeb,

Fringe Anarchists in Middle of Violent Demonstrations, Seattle Post-

Intelligencer, Dec. 1, 1999, at A15. The “anarchist” symbol consists of the

letter “A” in a circle, and the symbol “is one of the most familiar symbols

of anarchism and represents the slogan ‘Anarchy Is Order.’ ” Id.

7

The dissent, while acknowledging that violence occurred, argues that

our “account exaggerates its pervasiveness” because most protestors were

peaceful. Dissent at 6027. We of course explicitly recognize that “most

protestors were peaceful,” but this does not negate the harsh reality and

striking import of the widespread violence instigated by those protestors

who were not peaceful. Moreover, the description of the WTO riots that

follows is not just that of the majority. The whole world witnessed the

rampant violence and chaos in the streets of Seattle at the outset of the

WTO meeting. The dissent’s account misapprehends reality by minimiz-

ing the violence and its import. Any fair and objective review of the record

would lead to the conclusion that District Judge Barbara J. Rothstein’s

order granting summary judgment to the City correctly described an emer-

gency situation marked by pervasive vandalism, theft, arson, and assault

MENOTTI v. CITY OF SEATTLE 5957

painting buildings and breaking windows. Others pounded on

windows of downtown stores and threw rocks at police offi-

cers. Police formed a security perimeter around the Niketown

store in downtown Seattle because of protestors encouraging

a crowd to take over the store. Damage to property and risks

to individuals on this day were not insignificant, though lim-

ited in geographic area to a few blocks in the center of the

City, and protestors dispersed late into the evening.8

The WTO conference opened formally on November 30,

1999, and from law enforcement’s perspective, things got

worse. Police logs indicate that demonstrators gathered in the

downtown area as early as 5:45 a.m. At least some among the

protestors had violent intentions. On a videotape introduced

as part of the record, a masked protestor says, “50,000 people

that really care . . . . I’m hoping that we can come out here,

and get crazy and fucking up shit . . . , that every city in the

world knows that it can’t host the WTO conference and it bet-

ter give control of the city back to the people or that city’s

going to be torn to pieces.”

Those protestors who chose to use violence to disrupt the

WTO’s conference used an array of weapons, devices, and

tactics to obstruct the conference. The disruption of normal

that overwhelmed law enforcement resources. These acts of violence are

undisputed in the record before us. One may disagree on the legal implica-

tions of the violence under First Amendment doctrine, and doubtless we

and the dissent do so disagree. But to minimize the violence and threat to

the City, to visiting foreign dignitaries, and to Seattle’s citizens, as our dis-

senting colleague does, is wrong.

8

Appellants have not alleged a negligence cause of action against the

City for having advance notice of but failing to prevent the chaos that

stemmed from the violence that marred the WTO conference. However,

the pattern of protest propagating civil disorder and violence is relevant to

understanding the City’s interest in restoring and maintaining order to

allow the WTO conference to proceed securely. Our dissenting colleague

fails to give this interest adequate heed.

5958 MENOTTI v. CITY OF SEATTLE

city life was so extreme in some locations that it bordered on

chaos. Police officers in contemporaneous reports said that

they saw protestors carrying bottles filled with flammable liq-

uids, locking down intersections by forming human chains

from lightpost to lightpost, breaking windows at retail stores,9

overrunning and looting small retail stores, and jumping on

cars. By 8:00 a.m., protestors had cut off vehicular access to

the Paramount Theater and the Washington State Convention

& Trade Center, the primary meeting venues of the confer-

ence. After demonstrators were discovered inside meeting

venues, police requested and received a “lock down”10 of the

Washington State Convention & Trade Center and the Shera-

ton Hotel, where many WTO delegates were staying.11 Seattle

Police Department, The Seattle Police Department After

Action Report, World Trade Organization Ministerial Confer-

ence, Apr. 4, 2000, at 36-39 [hereinafter “WTO After Action

Report”].

Some protestors directed violence at law enforcement

authorities: Among the violent, there were protestors who

assaulted police officers with chemical irritants, and others

who vandalized police cars. Some violent protestors threw

metal spikes, cans, bottles, signs, empty gas canisters, and

pieces of concrete at officers, who were forced to wear riot

gear for protection. Other protestors deliberately disregarded

police lines and attempted to break through in violent con-

frontations with police. According to a report of the Seattle

City Council prepared after the WTO convention, “officers

9

Niketown, the site of protest on the prior day, again attracted the atten-

tion of violent protestors. Officers received reports that Niketown was

being ransacked by protestors, and the officers had to rescue employees

through a rear alley door.

10

A “lock down” of these facilities meant that no persons could enter or

exit.

11

The increased level of protection for delegates was necessary for their

security. It also was even more important because WTO meeting venues

had been designated the equivalents of foreign embassies, mandating

heightened security protection.

MENOTTI v. CITY OF SEATTLE 5959

were put in perilous situations where, often cut off from com-

munication, they were expected to endure physical assaults

and taunts for long periods without food, rest, restrooms, or

water.” Seattle City Council, Report of the WTO Accountabil-

ity Review Committee, Sept. 14, 2000, at 5 [hereinafter “ARC

Report”]. Some officers were “violently barraged with ball

bearings (‘pachinko’ balls), rocks and bottles, [and] squirted

with urine.” Id. at 10 & n.14. One police officer on duty suf-

fered a heart attack, and a helicopter evacuation was required

because medical units could not break through the gathered

crowd to provide medical assistance.

Some officers did not take the passive resistance approach

in response to being targeted by violence, and mutual insecu-

rity among police and protestors caused the situation to spiral

out of control. In lieu of large-scale arrests, some officers

responded with tear gas and similar non-lethal weapons like

pepper gas, beanbag guns, and rubber bullets. Id. at 4. The

gravity of the situation caused some officers to resort to mea-

sures characterized later by the City Council as “out of pro-

portion to the threats faced,” provoking further disturbance

and resistance from violent protestors.12 Id. at 4, 11.

12

The dissent focuses on the Seattle Police Department for its response,

finding significance in the City Council’s remark that officers “likely

intensified the situation.” Dissent at 6028. The dissent’s characterization

is incorrect as a description of police conduct as a whole, and in any event

is irrelevant to the analysis of Order No. 3’s constitutionality. The City

Council’s ARC Report acknowledges that “police officers on the front

lines had no basis for confidence that the violence would stop with rocks

and bottles,” and the report “thankfully endorses the performance of those

officers who underwent unnecessary hardship and were the victims of

poor planning and leadership in the field.” ARC Report at 4, 10. Moreover,

whether Order No. 3 comports with the First Amendment does not turn on

who is to blame for the intensity of the situation that the City faced. See

discussion infra Part III. Whatever the complex of causes, the City was

faced with riots and disorder beyond its control that threatened the safety

of visiting foreign officials, prompting Order No. 3, and its permissibility

must be assessed in light of the crisis facing the City when it was adopted.

Finally, it is also likely that most of the time when police attempt to quiet

a violent disturbance the situation is intensified, which is a collateral con-

sequence of law enforcement’s response to violent protest.

5960 MENOTTI v. CITY OF SEATTLE

The general public was also at risk. Some violent protestors

started fires in the streets and in large dumpsters, and then

protestors prevented fire trucks from entering the area. A

driver of a garbage truck was pulled from his vehicle and

assaulted in the core downtown area. Once police were over-

whelmed, some uses of non-lethal weapons, such as chemical

irritants, failed to discern law-abiding demonstrators and

bystanders from the law-breakers they were intended to dis-

perse. Not only dignitaries from many nations worldwide with

interest in the WTO’s trade conference, but also, regrettably,

panic, confusion, and chaos were visiting Seattle.

Some protestors even directly interfered with WTO dele-

gates in an effort to disrupt the progress of the conference.

Some violent protestors held, pushed, or tackled WTO dele-

gates to prevent their entry into conference venues. Some

WTO delegates were forcibly prevented from leaving confer-

ence venues. Some violent protestors stopped one delegate’s

car and punctured its tires. Reflecting the extreme dangers to

delegates, protestors, and the public, at least one WTO dele-

gate drew a gun in response to the protestors’ attempts to

detain him, requiring immediate police intervention.

Some violent protestors were well-organized, and their

actions were coordinated. Some protestors gathered intelli-

gence about police operations during the protest by asking

officers questions about law enforcement tactics. Other prote-

stors listened in on squad briefings taking place on city

streets. Still others used cellular telephones and “walkie-

talkies” to coordinate protestors’ activities.13 By one account,

Seattle’s streets turned into “seeming war zones.” ARC Report

at 4. It is perplexing how our dissenting colleague can rely on

the City Council’s report, with its acknowledgment of the

“war zone” atmosphere in Seattle, and still urge the violence

13

On the previous day, a protestor on a bicycle rode ahead of a group

of protestors, communicating to the crowd via radio the locations of police

officers.

MENOTTI v. CITY OF SEATTLE 5961

was not pervasive; although the ARC Report suggests that

violent protestors were less than one percent of the total prote-

stors, this is not a small amount of violence given the activi-

ties in which the protestors engaged, and where there were

tens of thousands of protestors.

Despite the gravity of these problems, not all protest was

violent or disruptive. Much protest activity was ordered and

reasonable. Several marches involving primarily peaceful

protestors took place in the downtown area on November 30,

1999. These marches, comprised of concerned persons who

were not violent and who were not breaking the law, caused

the inflow of tens of thousands of persons into downtown

Seattle. The largest protest of the day, a march organized by

the AFL-CIO, was estimated by police to have involved

40,000 persons. Other protest marches involving significant

numbers of persons included a march of about 1000 members

of the Sierra Club, a march of 500 students from the Univer-

sity of Washington, and a march of 1000 protestors from the

Tibetan Rights Association. These marches by non-violent

protestors showed the substantial public sentiment opposing

the WTO or its activities. Protests such as these are the posi-

tive fruits of an open society, and encourage us to scrutinize

with care the constitutional issues raised by city and police

responses to the breakdown of civic order and security caused

by violent protestors seeking to disrupt the WTO conference.14

As noted by the Seattle Police Department’s WTO After

Action Report, these largely peaceful demonstrations took

place amid the chaos and disruption caused by the violent

14

The dissent’s characterization of the decision to enact Order No. 3 as

following the realization that the “crowd was simply larger than the police

had anticipated” again ignores the violence and riot that threatened the

WTO conference. It misapprehends the extent of disorder and insecurity

caused by the large crowd: The police “were not going to be able to bring

the situation under control without taking some sort of drastic action,” and

“the only recourse” they had was to “establish the police perimeter” to

“provide security for the delegates.” See Dissent at 6026.

5962 MENOTTI v. CITY OF SEATTLE

protestors. The report also specified that the combination of

heightened security measures required for WTO delegates and

the large number of protestors rendered police unable effec-

tively to make individual arrests of those protestors who were

breaking the law. The report stated:

This was a pattern that occurred throughout the con-

ference and presented significant tactical challenges

to police commanders. The protestors were estab-

lishing a fluid, dynamic method of operation that

consisted of rapid deployment and the use of non-

criminal protestors to buffer smaller pockets of

protestors engaging in significant criminal acts.

WTO After Action Report at 35. One Seattle police captain’s

report noted that officers “heard and saw numerous incidents

of property destruction, burglary, and looting; but we were

unable to leave our lines to take enforcement actions.”

At about 3:30 p.m. on November 30, 1999, then-Seattle

Mayor Paul Schell declared a civil emergency in the City of

Seattle, pursuant to Seattle Municipal Code Section 10.02.

The Mayor also imposed a general curfew. The governor of

the State of Washington then authorized the deployment of,

and called out, the National Guard.15

President Clinton arrived at the Westin Hotel in downtown

Seattle between 1:30 a.m. and 2:30 a.m. on December 1,

1999. A few hours after the President’s arrival, when protest

activity had temporarily subsided, Mayor Schell signed

“Local Proclamation of Civil Emergency Order Number 3”

(Order No. 3). Order No. 3 said, in pertinent part:

15

The dissent chastises the City for poor planning driven by political

and cost considerations. Dissent at 6029. This condemnation does not con-

trol whether Order No. 3 comports with the First Amendment. Our analy-

sis properly focuses on the City’s chosen means to restore order once lost

to violent protestors bent on preventing the WTO conference from pro-

ceeding. See discussion infra Part III.A.2.

MENOTTI v. CITY OF SEATTLE 5963

WHEREAS, the Mayor declared a civil emergency

exists in the City of Seattle (“the City”) in the Proc-

lamation Dated November 30, 1999; and

WHEREAS, after the issuance of the Proclamation

and despite the deployment of hundreds of law

enforcement officers, the City continued to experi-

ence civil disturbances resulting in injury to persons

and damage to property; and

WHEREAS, the level of city disturbances and dan-

ger to persons and property has been highest in those

areas in which there are protests in the vicinity of

World Trade Organization (“WTO”) meetings; and

WHEREAS, the City understands its obligations to

permit expressive activity pursuant to reasonable

time, place and manner restrictions necessitated by

the existing public safety concerns for WTO dele-

gates, dignitaries, citizens, public safety employees

and protestors; and

WHEREAS, the Chief of Police and other public

safety officials have determined that the safety of

WTO delegates, dignitaries, citizens, public safety

employees and protestors cannot be preserved with-

out reasonably limiting access to areas used by WTO

personnel; and

WHEREAS, it is imminently necessary to use

extraordinary measures to protect the public peace,

safety and welfare; and

WHEREAS, the civil emergency necessitates the uti-

lization of emergency powers granted to the Mayor

pursuant to Seattle Municipal Code, Chapter 10.02

and [Wash. Rev. Code] Chapter 38.52. Therefore

....

5964 MENOTTI v. CITY OF SEATTLE

A limited curfew is imposed in the portion of the

City within the following boundaries: Starting on the

corner of 4th Avenue and Lenora Street, then pro-

ceeding south on 4th Avenue to Seneca Street, then

east on Seneca Street to the I-5 freeway, then north

along the I-5 freeway to Boren Avenue, then north

on Boren Avenue to Pine Street, then west on Pine

Street to 6th Avenue, then north on 6th Avenue to

Lenora Street, then west on Lenora Street to, and

concluding at 4th Avenue and Lenora, as shown on

the attached map.

The effect of Order No. 3 was that all persons, subject to

limited exceptions, were prohibited from entering the portion

of downtown Seattle described in the order. The exceptions to

the prohibition on entering the restricted zone were granted

for: (1) delegates and personnel authorized by the WTO to

participate in official WTO functions; (2) employees and

owners of businesses within the restricted area and other per-

sonnel necessary to the operation of those businesses; and (3)

emergency and public safety personnel.16 Violations of Order

No. 3 were punishable by a fine of not more than $500 and/

or imprisonment of not more than 180 days. At all times, the

Washington State Convention & Trade Center and the Para-

mount Theater were within the restricted zone, as well as the

major hotels where WTO delegates were staying (i.e., the

Four Seasons Hotel, Cavanaughs, and the Sheraton Hotel).

The restricted zone skirted these venues, and in substance pro-

vided a protective perimeter.17

In the early morning hours of December 1, 1999, Seattle

Assistant Chief of Police Harv Ferguson issued an “Opera-

16

In an amendment to Order No. 3 issued later that day, additional

exemptions were granted for city staff and credentialed members of the

press.

17

We attach as Appendix A a diagram of the boundaries of the restricted

zone that was part of the record in this case.

MENOTTI v. CITY OF SEATTLE 5965

tions Order” to implement Order No. 3 and the restricted

zone. The Operations Order told officers that “[v]ehicles and/

or pedestrians . . . are authorized access inside the [restricted

zone] if they have a reasonable purpose for entering the

perimeter. A reasonable purpose includes work, shopping at

a specific location within the [restricted zone], or other like

type reasonable activity.” Thus, as it was interpreted, Order

No. 3 excluded all persons except delegates and personnel

authorized by the WTO for its official functions, employees

and owners of businesses within the restricted area, their cus-

tomers, other personnel necessary to the operation of those

businesses, and emergency and public safety personnel. Ini-

tially, Order No. 3 had not explicitly permitted shoppers to

enter, but it had allowed business owners and persons neces-

sary to run their businesses to enter, which implicitly sup-

ported the interpretation of the Operations Order.

At a press conference on the morning of December 1, 1999,

Assistant Seattle Police Chief Edward Joiner18 explained the

City’s adoption of Order No. 3:

We’re going to adopt a policy that’s pretty much in

line with what’s done in other cities around the

world when they have an event of this magnitude,

and that is, to take the core area where the [WTO]

conference is occurring . . . and prohibit any demon-

strations within that core area for the remainder of

the week.

Seattle Police Captain James Pugel testified in deposition19

that Assistant Chief Joiner had instructed him, in connection

18

Chief Stamper had delegated to Assistant Chief Joiner the task of

planning the Seattle Police Department’s response to the WTO confer-

ence.

19

The Menotti plaintiffs submitted Captain Pugel’s deposition testimony

in support of their motion for partial summary judgment and in opposition

to the City’s motion for partial summary judgment.

5966 MENOTTI v. CITY OF SEATTLE

with the implementation of Order No. 3 and the Operations

Order, “[n]o large protests. No people can come marching

through [the restricted zone]. There will be no marches.”

Chief Stamper testified in deposition20 that the effect of the

Operations Order was to exclude protestors from entering the

restricted zone:

From the officer’s point of view, we have made it

clear that we could not permit large groups to gather

to block intersections and so forth, and from their

point of view what they’re thinking and what they

believe is their direction is to make sure that nobody

comes into that, into the so-called no-protest zone

unless he or she is there to shop or has legitimate

business purpose in the downtown area, so from

their point of view it effectively meant anybody

coming in to protest.

Order No. 3 and the accompanying Operations Order

decreased violence and protest within the restricted zone. But

it did not stop either violence or protest within the restricted

zone. Inside the restricted zone, protestors gathered in open

defiance of Order No. 3, and police made about 300 arrests.21

President Clinton addressed the WTO conference on

December 1, 1999, and departed the next morning. There was

no violence immediately incident to his presentation. On

20

The Menotti plaintiffs submitted Chief Stamper’s deposition testi-

mony in support of their motion for partial summary judgment and in

opposition to the City’s motion for partial summary judgment.

21

Even outside the restricted zone, there were some problems of vio-

lence incidental to protest. Some violent protestors caused property dam-

age, threw debris, blocked the street, and trapped people in their cars.

Some protestors jumped onto an officer’s patrol car and shook it by its

light bar, while others laid in front of the car and prevented the officer

from escaping. Some protestors took over the fuel pumps at a gas station

and attempted to fill small bottles with gasoline.

MENOTTI v. CITY OF SEATTLE 5967

December 2, 1999, Mayor Schell amended Order No. 3 by

reducing the size of the restricted zone. As modified, the

restricted zone was reduced to exclude the Westin Hotel

because President Clinton had since departed.22 Police logs

indicate that protest violence decreased on December 2, 1999,

and through the conclusion of the WTO conference on

December 3, 1999. Order No. 3 expired at 7:00 a.m. on the

morning of December 4, 1999.

In opposition to the City’s motion for summary judgment,

plaintiff-appellant Kenneth Hankin submitted a declaration

stating that he was arrested for violating Order No. 3 by tres-

passing inside the restricted zone with the purpose of protest.

Hankin testified via declaration that, on the morning of

December 1, 1999, he and others participated in a group pro-

test that began in Denny Park, north of downtown Seattle and

outside the restricted zone. As their group approached West-

lake Park, a downtown shopping plaza and public square

within the restricted zone, Seattle police surrounded them.

The group responded by sitting on the ground. Hankin testi-

fied that, without warning, Seattle police arrested the group of

protestors, and then turned to another portion of Westlake

Park, where Hankin was standing. Hankin and others beside

him were arrested.

Victor Menotti submitted his deposition testimony in sup-

port of his motion for partial summary judgment.23 Menotti

testified that he was a credentialed participant in the WTO

conference and that, on December 1, 1999, he was standing

22

We attach as Appendix B a diagram of the revised boundaries of the

restricted zone that was part of the record in this case.

23

We consider these depositions because they were part of the record

when the district court granted summary judgment to the defendants on

the Menotti plaintiffs’ claims. Fed. R. Civ. P. 56(c) (stating that summary

judgment should be granted “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law”).

5968 MENOTTI v. CITY OF SEATTLE

on a sidewalk talking with a small group about a WTO con-

ference meeting he had just attended. Without warning, police

charged the group surrounding Menotti. Menotti ran, believ-

ing that police were trying to disperse the crowd, but stopped

when he realized he was being pursued. Menotti was arrested

for pedestrian interference and obstructing an officer; how-

ever, the charges against Menotti were dismissed before a

probable cause hearing was held.

Thomas Sellman also introduced his deposition testimony

and that of Seattle Police Detective Sharon Stevens in support

of his motion for partial summary judgment. Sellman testified

that he was within the restricted zone on December 1, 1999,

distributing leaflets containing a cartoon criticizing the WTO.

Stevens testified that she and another officer witnessed Sell-

man distributing the flyers and asked Sellman what business

he had in the zone. When Stevens ascertained that Sellman

did not come within one of the exceptions to Order No. 3, Ste-

vens ordered him to leave the restricted zone. When Sellman

attempted to hand out another flyer, Stevens placed him under

arrest for failing to disperse. Sellman spent two nights in jail

and was released thereafter.

Todd Stedl presented deposition testimony in support of his

motion for partial summary judgment. Stedl testified that,

after hearing about Order No. 3 on December 1, 1999, he

decided to enter the restricted zone and distribute leaflets con-

taining the text of the First Amendment. While standing just

outside the zone, Stedl tried to hand a leaflet to an officer,

who reacted by grabbing the fliers and searching Stedl’s bag.

When Stedl complained that the officer could not seize his fli-

ers or search his bag without a warrant, the officer told him

to contact City Hall and to leave the restricted zone. Stedl

asked for the officer’s badge number, and the officer told

Stedl to leave. The officer later approached Stedl again and

told him to leave the area. Stedl told the officer that he

thought he already was outside the zone. The officer replied

that Stedl should get going. When Stedl asked how far, the

MENOTTI v. CITY OF SEATTLE 5969

officer told him fifteen blocks. Stedl testified that he was too

intimidated to return to the zone to pass out more leaflets, and

felt that if he had returned, he would be arrested. The officer

was never identified.

Doug Skove introduced his deposition testimony and video

evidence in support of his motion for partial summary judg-

ment. Skove testified that, on December 2, 1999, he decided

to go to Seattle after hearing about the restricted zone. He car-

ried a sign that read on one side, “Is the WTO in control of

Seattle too?” and on the other side “I have the right to protest

non-violently.” The video evidence shows that a police officer

(later identified as Seattle Police Officer Ronald Smith) saw

Skove carrying the sign as Skove walked into a crosswalk.

Smith said to Skove, “Hey, what did the Mayor tell you?

Other side of Fourth, other side of Seneca.”24 As Skove fin-

ished crossing the street, Smith approached, grabbed Skove’s

sign and pulled it away from his hands. Skove turned to his

right and continued walking across the street and away from

Smith, while Smith shouted “Come here, hey pal!” Skove

continued walking away. Smith said, “That’s alright, that’s

okay,” as Smith walked away, folded Skove’s sign, and threw

it away. After Skove had another encounter with police where

a second sign was seized, Skove was warned he would be

arrested if he continued protesting. Skove left the restricted

zone.

III

The Hankin and Menotti plaintiffs contend that Order No.

3 was an unconstitutional time, place, and manner restriction

on its face, and the Menotti plaintiffs also contend that Order

No. 3 unconstitutionally conferred unfettered police discretion

for its implementation. The Hankin plaintiffs also contend

that Order No. 3 was unconstitutional as applied to them

24

This was an instruction from Smith to Skove to exit the confines of

the restricted zone.

5970 MENOTTI v. CITY OF SEATTLE

because the City had adopted a policy of arresting only anti-

WTO protestors within the restricted zone.25

A

We first address the facial constitutionality of Order No. 3.

We have held that “[a]n ordinance is facially unconstitutional

if (1) it is unconstitutional in every conceivable application

because it is vague or impermissibly restricts a protected

activity or (2) it seeks to prohibit such a broad range of pro-

tected conduct that it is unconstitutionally overbroad.” Vlasak

v. Superior Court, 329 F.3d 683, 688 (9th Cir. 2003) (internal

quotation marks and citation omitted). The Supreme Court

has held that “particularly where conduct and not merely

speech is involved, we believe that the overbreadth of a stat-

ute must not only be real, but substantial as well, judged in

relation to the statute’s plainly legitimate sweep.” Broadrick

v. Oklahoma, 413 U.S. 601, 615 (1973). The Hankin plaintiffs

contend that Order No. 3 was facially unconstitutional

because it was overbroad. In evaluating this overbreadth chal-

lenge, we determine whether Order No. 3’s restrictions on

speech were content neutral, were narrowly tailored to serve

a significant governmental interest, and left open ample alter-

native means of communication. Vlasak, 329 F.3d at 689; see

also Frisby v. Shultz, 487 U.S. 474, 481 (1988).

1

[1] We address first whether Order No. 3 was content neu-

tral. “The principal inquiry in determining content neutrality,

in speech cases generally and in time, place, or manner cases

25

“A facial challenge alleges that any enforcement of the ordinance

creates an unacceptable risk of the suppression of ideas. An as-applied

challenge alleges that the restriction on speech is unconstitutional as

applied to the litigant’s particular speech activity, even though the law

may be capable of valid application to others.” Kuba v. 1-A Agric. Ass’n,

387 F.3d 850, 856 (9th Cir. 2004) (internal quotation marks and citation

omitted).

MENOTTI v. CITY OF SEATTLE 5971

in particular, is whether the government has adopted a regula-

tion of speech because of disagreement with the message it

conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989). The reason for this rule is to protect and preserve free

and unfettered speech for the ultimate good of society. We

have expressed this basic reason in varied ways, but it is unas-

sailable that the “fundamental principle” behind content anal-

ysis is that “government may not grant the use of a forum to

people whose views it finds acceptable, but deny use to those

wishing to express less favored or more controversial views.”

City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48-49

(1986) (internal quotation marks and citation omitted). In

assessing whether a restraint on speech is content neutral, we

do not make a searching inquiry of hidden motive; rather, we

look at the literal command of the restraint. Stated another

way, we agree with Justice Kennedy’s observation in City of

Los Angeles v. Alameda Books, Inc., that “whether a statute

is content neutral or content based is something that can be

determined on the face of it; if the statute describes speech by

content then it is content based.” 535 U.S. 425, 448 (2002)

(Kennedy, J., concurring). Our circuit has adopted this view.

Ctr. for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153,

1164 (9th Cir. 2003).

[2] Applying these principles here, we see Order No. 3 as

content neutral on its face. Even when we credit plaintiffs’

evidence and give plaintiffs all reasonable inferences, the text

of Order No. 3 is not in dispute, and it does not favor one con-

tent over another. The purpose of enacting Order No. 3 had

everything to do with the need to restore and maintain civic

order, and nothing to do with the content of Appellants’ mes-

sage. See United States v. Griefen, 200 F.3d 1256, 1260 (9th

Cir. 2000) (“[A] restriction on expressive activity is content-

neutral if it is justified, i.e., based on a non-pretextual reason

divorced from the content of the message attempted to be con-

veyed.”). As a matter of law, Order No. 3 was not a regulation

of speech content, but rather was “a regulation of the places

where some speech may occur.” See Hill v. Colorado, 530

5972 MENOTTI v. CITY OF SEATTLE

U.S. 703, 719 (2000). Under Order No. 3, persons could not

protest—in support of or against—any topic within the

restricted zone. Id. (holding that restrictions are not content

based where they “apply equally to all demonstrators, regard-

less of viewpoint, and the statutory language makes no refer-

ence to the content of the speech”) (internal quotation marks

and citation omitted). The restricted zone established by

Order No. 3 applied equally to persons of all viewpoints. That

Order No. 3 predominantly affected protestors with anti-WTO

views did not render it content based. See Madsen v. Women’s

Health Ctr., Inc., 512 U.S. 753, 763 (1994) (“[T]he fact that

the injunction covered people with a particular viewpoint does

not itself render the injunction content or viewpoint based.”).

Further, the City’s evidence in testimony of Mayor Schell,26

Police Chief Stamper,27 and Assistant Chief Joiner28 was that

the City did not implement Order No. 3 because of disagree-

ment with the message of anti-WTO protestors. Instead, the

motivating factor in the adoption of Order No. 3, as stated in

26

Schell testified in deposition that a “secure zone” was his “primary

objective” in enacting Order No. 3, and that the advice he received from

his staff was that a “secure zone” was necessary in order to assure the

safety of downtown residents and WTO delegates.

27

Stamper testified in deposition that a paramount goal was maintaining

security and avoiding violence. He testified, “I also need to emphasize that

we had a crucial intersection blocked completely denying access of emer-

gency vehicles and denying access to the WTO venue itself . . . . [T]hose

were formidable challenges bigger by far than anything, once again, that

I had seen in the six years I had been here . . . . [O]ur concern is the vio-

lence could erupt on either side, that a delegate, for example, angered at

being denied access could actually resort to violence, in this case, possibly

armed violence.”

28

Joiner testified in deposition that “the only recourse we had was to

establish the [restricted zone] where we could provide security for the del-

egates and so forth.” Joiner also testified that “[w]e would not have

allowed [peaceful protesters] to stay [within the restricted zone] under the

circumstances because we couldn’t - we could not be assured that the

demonstration would remain peaceful given the experience that we

already had.”

MENOTTI v. CITY OF SEATTLE 5973

its text, was the City’s observation that “the level of civil dis-

turbances and danger to persons and property ha[d] been

highest in those areas in which there [were] protests in the

vicinity of [WTO] meetings,” and the need to ensure the

safety of WTO delegates as well as downtown residents and

workers. The plaintiffs did not submit evidence controverting

the text of Order No. 3, which is not in dispute, or contradict-

ing the purposes recited by the Mayor and police chief.29

Appellants contend that Order No. 3 was content based

because it permitted exemptions for shoppers and downtown

workers to enter the restricted zone. We reject this argument

because these exemptions did not enable the City to discrimi-

nate against ideas it disfavored. See One World One Family

Now v. City and County of Honolulu, 76 F.3d 1009, 1012 n.5

(9th Cir. 1996) (“Because these exemptions don’t enable the

city to discriminate against ideas it disfavors, they don’t ren-

der the ordinance content-based.”). The exemptions permitted

shoppers and downtown workers to go about their business in

the restricted zone and did not enable the City to discriminate

against any persons on the basis of their views. Further, there

is no evidence that those persons who were permitted to enter

the restricted zone were part of the security problem that

prompted the adoption of Order No. 3. See Hill, 530 U.S. at

723 (“[A] statute that restricts certain categories of speech

only lends itself to invidious use if there is a significant num-

ber of communications, raising the same problem that the stat-

29

Appellants submitted the deposition testimony of Schell and Stamper

in an attempt to establish that the City’s purpose in adopting Order No. 3

was unlawful, in that the City implemented Order No. 3 with the purpose

of eliminating protestors from the downtown area. But this evidence is

consistent with the objective of Order No. 3 to eliminate all persons, with

limited exceptions, from the downtown area. Even if plaintiffs could

establish that the City had an illicit motive in adopting Order No. 3, that

would not be dispositive. The Supreme Court has held unequivocally that

it “will not strike down an otherwise constitutional statute on the basis of

an alleged illicit legislative motive.” United States v. O’Brien, 391 U.S.

367, 383 (1968).

5974 MENOTTI v. CITY OF SEATTLE

ute was enacted to solve, that fall outside the statute’s scope,

while others fall inside.”).

[3] We hold that Order No. 3 was content neutral, and pro-

ceed to address the other factors necessary for a reasonable

time, place, and manner restriction.30

2

[4] We next assess whether Order No. 3 was narrowly tai-

lored to serve a significant governmental interest. The

Supreme Court has held that “[a] statute is narrowly tailored

if it targets and eliminates no more than the exact source of

the ‘evil’ it seeks to remedy.” Frisby, 487 U.S. at 485. To be

narrowly tailored, a statute “need not be the least restrictive

means of furthering [the government’s] interests, but the

restriction may not burden substantially more speech than

necessary to further the interests.” United States v. Baugh,

187 F.3d 1037, 1043 (9th Cir. 1999). However, “the First

Amendment demands that municipalities provide ‘tangible

evidence’ that speech-restrictive regulations are ‘necessary’ to

advance the proffered interest in public safety.” Edwards v.

City of Coeur d’Alene, 262 F.3d 856, 863 (9th Cir. 2001). The

tailoring of the restraint must of course correspond to the pur-

poses it serves. Ward, 491 U.S. at 799 (holding that the nar-

rowly tailored requirement is satisfied “so long as the

[neutral] regulation promotes a substantial government inter-

est that would be achieved less effectively absent the regula-

30

We also hold that Order No. 3 was not “viewpoint-based” on its face.

Viewpoint discrimination occurs “when the government prohibits speech

by particular speakers, thereby suppressing a particular view about a sub-

ject.” Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir. 2001) (internal

quotation marks and citation omitted). Here, Order No. 3’s ban on protests

did not prohibit a particular viewpoint, and applied equally to persons who

wished to protest about any topic. As in Hill, Order No. 3 “applie[d]

equally to used car salesmen, animal rights activists, fundraisers, environ-

mentalists, and missionaries.” 530 U.S. at 723.

MENOTTI v. CITY OF SEATTLE 5975

tion”) (quoting United States v. Albertini, 472 U.S. 675, 689

(1985)).31

[5] Applying the rule of Ward and its standard here, we

return to the issue of whether Order No. 3 was narrowly tai-

lored to serve a significant government interest. No one could

seriously dispute that the government has a significant interest

in maintaining public order; indeed this is a core duty that the

government owes its citizens.32 The Supreme Court has

declared that “[i]t is a traditional exercise of the States’ police

powers to protect the health and safety of their citizens.” Hill,

530 U.S. at 715 (internal quotation marks and citation omit-

ted); see also Edwards, 262 F.3d at 863; One World One

Family Now, 76 F.3d at 1013. In the face of violent riot, the

City had a duty to restore order and to ensure the safety of

WTO delegates and the residents of Seattle.33 The City also

31

While the City was not required to choose the least restrictive alterna-

tive, an assessment of alternatives can still bear on the reasonableness of

the tailoring of Order No. 3 and whether it was “narrowly tailored” as

required. We have said that “if there are numerous and obvious less-

burdensome alternatives to the restriction on [protected] speech, that is

certainly a relevant consideration in determining whether the ‘fit’ between

ends and means is reasonable.” City of Cincinnati v. Discovery Network,

Inc., 507 U.S. 410, 417 n.13 (1993); Edwards, 262 F.3d at 865.

32

The district court was not required to accept the conclusion of Appel-

lants’ declarant that the City’s only interest was to “transport the delegates

to the conference.” That was not an accurate summary of the record before

the district court. Nor in our analysis were we required to pretend as if the

movement of delegates was the City’s only interest in the face of riot. The

record before the district court showed widespread violence and the break-

down of civic order. On the undisputed facts before the district court, the

City’s interest in maintaining peace and order is fairly presented. The dis-

sent’s attempt to reduce the City’s interest to transporting delegates is

wrong. Our analysis properly focuses on the City’s interest when it

enacted Order No. 3: restoring order and providing security to the core

downtown area to protect the President, visiting world dignitaries, and the

general public, and to allow the WTO conference to proceed.

33

The dissent argues that our account of the breakdown in public order

“does not paint a clear picture of the situation confronting City officials”

5976 MENOTTI v. CITY OF SEATTLE

had an interest in seeing that the WTO delegates had the

opportunity to conduct their business at the chosen venue for

the conference; a city that failed to achieve this interest would

not soon have the chance to host another important interna-

tional meeting.34

The Appellants nonetheless contend that the safety net cast

because the protestors had left the core downtown area and the violence

had subsided when Order No. 3 was implemented. Dissent at 6027. But

there is no logical connection between an assessment of the violence that

occurred when WTO proceedings were ongoing and a temporary cessation

of violence after WTO proceedings had concluded for the day. Even a

fierce battle may experience a respite of calm, and the calm of an evening

can precede a storm in the morning. The City was well aware that some

protestors wanted to shut down the WTO conference by violent means and

that the WTO conference was to resume the following day, and so there

was a strong likelihood that more “organized violence of a serious nature

[was] about to occur.” See Collins v. Jordan, 110 F.3d at 1363, 1373

(1997).

In any event, the dissent’s claim, based on a single “sweep of the

streets” at 8:00 p.m., that the streets of Seattle were “calm and under con-

trol” during the evening of November 30, Dissent at 6027, ignores the

undisputed evidence. By 9:00 p.m., officers were in danger of being

assaulted and injured by some aggressive protestors who held the advan-

tage of Capitol Hill’s higher ground. Ongoing skirmishes continued until

3:30 a.m., with officers fending off “rocks, bottles, golf balls, and . . .

incendiary devices.” WTO After Action Report at 42. Moreover, violent

protestors had established a pattern of converging, protesting, and then

dispersing only to reassemble later at another location. Id. at 35. Given the

violent protestors’ aim to shut down the WTO conference and their pattern

of conduct, a realistic depiction of events in the record is that the violence

had “temporarily subsided” during the evening of November 30, not that

the violence had “ended,” as the dissent maintains. Even crediting Appel-

lants’ evidence and giving all reasonable inferences to the Appellants, as

we must under the summary judgment standard, the record does not permit

a rational conclusion that the City should have thought the violence

“ended.”

34

This interest is embraced within the City’s asserted interest in restor-

ing order and maintaining security, which are necessary for public safety,

effective commerce, and the vitality of the City.

MENOTTI v. CITY OF SEATTLE 5977

by the City was too broad, and that it restricted protest unduly

in too large of an area, and thus wasn’t narrowly tailored.35

We turn to these contentions.

[6] Here, the City had a tough problem. Violent protestors

were damaging the City and jeopardizing the progress of the

WTO conference. Yet violent protestors were breaking the

law amidst throngs of lawful protestors. In this setting, per

evidence that is not materially in dispute, large numbers of

non-violent protestors prevented police from curbing effec-

tively the activities of the violent protestors.36 Police reports

said that “[t]he protestors were establishing a fluid, dynamic

method of operation that consisted of rapid deployment and

the use of non-criminal protestors to buffer smaller pockets of

protestors engaging in significant criminal acts.” WTO After

Action Report at 35. The violent protestors damaged the City

and disrupted the WTO conference, but they were able to

elude capture due to the tens of thousands of non-violent

protestors in the downtown area. The implementation of

Order No. 3 was necessary to permit police to restore and then

to maintain order and safety in downtown Seattle, for WTO

conference delegates and the public, and to allow officers to

execute their law enforcement duties by arresting those break-

ing the law.37

35

The Menotti plaintiffs and the Hankin plaintiffs argue that Order No.

3 was not narrowly tailored because the restricted zone was too large, and

because the restricted zone banned protected forms of speech. In addition,

the Hankin plaintiffs argue that the City should have “expend[ed] the

effort necessary to ensure clear passage for the delegates to and from the

[WTO conference] venues without infringing unnecessarily on protestors’

rights.”

36

We are concerned here with the effect that the large number of peace-

ful protestors had on the ability of police to quell the significant criminal

acts of the violent protestors. The impeding or “buffer” effect of peaceful

protestors is undisputed on the record.

37

The Hankin plaintiffs contend that “[t]here was no attempt to preserve

lawful protest and arrest only those who broke the law, just an attempt to

ban all protest.” But the record does not support that argument. The

5978 MENOTTI v. CITY OF SEATTLE

Citing the Supreme Court’s decision in Madsen, as well as

our decisions in Baugh and Bay Area Peace Navy v. United

States, 914 F.2d 1224 (9th Cir. 1990), Appellants contend that

there are cases invalidating restricted protest zones that were

smaller in scope than the restricted zone implemented by

Order No. 3. This argument misapprehends the case law and

ignores the factual circumstances of this case. None of these

cases establish a per se rule on the boundaries that a city may

draw in creating a restricted zone during protest activities.

Further, none of these cases dealt with the factual circum-

stances presented here: a small but dedicated group of violent

protestors who inflicted disruption and destruction on city

streets and threatened the safety of world leaders, while

obscured and sheltered by about 50,000 peaceful protestors,

all within a concentrated portion of a metropolitan downtown

area. We decline Appellants’ invitation to interpret the above

cases as defining conclusively the appropriate scope of “nar-

row tailoring” in the context of establishing a buffer zone on

protest activity.38

restricted zone created by Order No. 3 was implemented only after a full

day of protests on November 30, 1999. Before the implementation of

Order No. 3, protestors had been allowed in the downtown area, resulting

in the City’s police force being overwhelmed, as well as significant dam-

age and disruption to the downtown area. If the Hankin plaintiffs contend

that there was no attempt to preserve lawful protest on December 1, 1999,

then that too is belied by the record. Protestors were allowed access to

streets immediately adjacent to the delegates’ hotels and conference sites.

There was not a total bar to protest, and the scope of the restrictions must

be tested under the legal standards identified above for time, place, and

manner restrictions on speech.

38

The Menotti plaintiffs also argue that Order No. 3 did not further a

significant governmental interest because it permitted entry into the

restricted zone of persons not engaged in protest. We disagree. There is

no evidence that those permitted in the restricted zone were part of the

problem addressed by Order No. 3. Persons who lived, worked, or had

other business in the restricted zone could go about their business without

impeding the City’s ability to maintain a secure environment in the

restricted zone. Though Order No. 3 contained exemptions that allowed

certain persons to enter the zone, it still furthered a significant governmen-

tal interest by excluding from the zone the protest activity that was a

security threat to the downtown area.

MENOTTI v. CITY OF SEATTLE 5979

Appellants’ contention that the large size of the restricted

zone rendered it constitutionally impermissible ignores signif-

icant considerations that confronted City officials. As seen

from the diagram of the restricted zone, the various hotels and

meeting venues of the WTO conference were spread out

across several blocks of downtown Seattle. The size of the

restricted zone cannot sensibly be evaluated without consider-

ing the size of the area in which delegates were housed and

had to move freely in order to do the work of the WTO con-

ference. To achieve the goal of providing secure protection

for WTO delegates and ensuring safe transit for delegates

between venues and hotels, the City crafted the restricted zone

as being bounded by the outermost venues of the conference

and the hotels where delegates were staying.39 As the district

court saw it, “the [restricted] zone covered only enough terri-

tory for the WTO delegates and the President to move safely

from their hotels to the [WTO] convention and lasted only

during the conference.”40 We conclude the district court’s

analysis of this issue was sound and in accord with law.

39

Appellants make much of a declaration submitted by a former law

enforcement official, who contended that Seattle police should have used

pedestrian tunnels and dedicated roadways to facilitate the movement of

WTO delegates. Yet, these contentions do not address the fact that the tun-

nels in question did not connect all of the hotels and venues being used

by WTO delegates. The suggestions in the declaration provide no practical

way to stop the behavior of violent protestors in the downtown Seattle area

on November 30, 1999. Moreover, Appellants’ alternatives were not a fea-

sible means for the City to balance its interest in hosting the WTO confer-

ence with reliable safety for delegates, and the demonstrators’ interest in

expressive activity. See Kuba, 387 F.3d at 862 n.12 (recognizing that sug-

gested alternatives that are “far less restrictive and more precise means of

regulating the time, place, and manner of speech” is just the first step in

a “narrow tailoring” analysis, and that a court must also consider “whether

the alternatives both are feasible and allow substantially more speech”).

Even crediting Appellants’ declarations and giving all reasonable infer-

ences to Appellants, we cannot say that the alternatives were a feasible

means to respond to the prevalent violence that gravely threatened the

security of the WTO conference and the peace and order of the City.

40

That Order No. 3 protected a “particular method” of getting WTO

delegates to the conference does not mean, as the dissent argues, that this

is the only “interest Order No. 3 actually served.” See Dissent at 6041 n.7.

As we have explained, Order No. 3 brought order and security to the core

downtown area, providing safety for delegates and allowing the WTO

conference to proceed as scheduled. See discussion supra at 5975-77.

5980 MENOTTI v. CITY OF SEATTLE

We also reject Appellants’ contention that the size of the

restricted zone enforced by Order No. 3 was an overreaction

that needlessly restricted the rights of peaceful protestors. In

the context of a massive demonstration with tens of thousands

of participants, once a pattern of chaotic violence had been

established, it was unrealistic to expect police to be able to

distinguish, minute by minute, those protestors with benign

intentions and those with violent intentions. In this regard, the

Supreme Court’s decision in Hill v. Colorado, 530 U.S. 703

(2000), has particular application. In Hill, the Court upheld a

Colorado law that made it unlawful for any person within 100

feet of an abortion clinic knowingly to approach within eight

feet of another person without that person’s consent to pro-

vide materials or counseling. The Court reasoned:

[T]he [restricted zone’s] prophylactic aspect is justi-

fied by the great difficulty of protecting, say, a preg-

nant woman from physical harassment with legal

rules that focus exclusively on the individual impact

of each instance of behavior, demanding in each case

an accurate characterization (as harassing or not

harassing) of each individual movement within the

8-foot boundary. Such individualized characteriza-

tion of each individual movement is often difficult to

make accurately. A bright-line prophylactic rule may

be the best way to provide protection, and, at the

same time, by offering clear guidance and avoiding

subjectivity, to protect speech itself.

Id. at 729.

[7] Here, the size of the restricted zone was justified by the

difficulty of protecting world leaders in an environment in

which a small group of violent protestors were determined to

cause chaos and to disrupt the conference proceedings midst

tens of thousands of non-violent protestors.41 In different cir-

41

The dissent is wrong to characterize the City’s means as a “poor fit”

with the City’s interest based on the occurrence of violence outside the

MENOTTI v. CITY OF SEATTLE 5981

cumstances, it might be possible for law enforcement authori-

ties, on an individualized basis, to distinguish between

peaceful protestors and those with violent intentions. But in

these circumstances, after the broad antagonism to the WTO

restricted zone. It is not required for our legal analysis that the City’s mea-

sure to restore order where it was most needed had to maintain peace and

security perfectly in all areas outside the restricted zone. The dissent’s

argument that Order No. 3 was not narrowly tailored because it “did not

protect anyone outside of the perimeter,” Dissent at 6046, ignores or mini-

mizes the core interest addressed by Order No. 3: protecting the President

and foreign dignitaries who came to Seattle to conduct the business of the

WTO. The City needed to restore and maintain order in the core down-

town area to achieve this interest, and Order No. 3 “targets and eliminates

no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby, 487

U.S. at 485. We decline the dissent’s suggestion that a city’s means to

achieve its significant interest of restoring and maintaining security can

never be narrowly tailored absent a policy completely efficacious in elimi-

nating violence. See, e.g., Ward, 499 U.S. at 800 (“The validity of time,

place, or manner regulations does not turn on a judge’s agreement with the

responsible decisionmaker concerning the most appropriate method for

promoting significant government interests or the degree to which those

interests should be promoted.”) (emphasis added); see also City Council

v. Taxpayers for Vincent, 466 U.S. 789, 807-10 (1984) (upholding a ban

on posting signs on public streets to achieve the significant public interest

of “avoiding visual clutter” even though posted signs only “add some-

what” to the city’s visual clutter).

Similarly, the dissent’s argument that the restricted zone’s size “al-

lowed” violence to continue in areas outside the zone, Dissent at 6047, is

unsupported by and contrary to the record, which places some officers and

notes hundreds of arrests outside the zone. As the conference moved

toward completion, and the situation calmed, police were able “to escort

and monitor non-permitted demonstrations outside the perimeter in a man-

ner consistent with permitted demonstrations.” WTO After Action Report

at 45. Moreover, the district court correctly found that the City reasonably

concluded in Order No. 3 that “the level of city disturbances and danger

to persons and property [was] highest in those areas in which there are

protests in the vicinity of World Trade Organization (“WTO”) meetings.”

Contrary to the dissent’s assertion, the perimeter did more than protect

WTO delegates; Order No. 3 brought safety and security to the downtown

area, protecting businesses, their employees, and the City’s citizens as

well.

5982 MENOTTI v. CITY OF SEATTLE

had ripened into pervasive illegal and violent disruptive

actions, it would not have been practical to require police, on

a continuing basis, to make an accurate determination of each

protestor as violent or not violent. Appellants also argue that

police should have had more extensive staffing on the street

so that they could permit protestors to enter anywhere and

simply arrest and remove those who violated the law.42 But

we should hesitate to say that the law requires such a solution

in an emergency situation like that here where law-breaking

and law-abiding protestors were often indistinguishable, and

where those abiding the law might have interfered indirectly

with enforcement against violent protestors.

Appellants contend that Collins v. Jordan, 110 F.3d 1363

(9th Cir. 1996), controls the outcome of this case. We dis-

agree. In Collins, the Mayor of San Francisco responded to

sporadic violent protests by directing police officers to “cause

the dispersal and prevent the continuation of any gatherings

of people anywhere in the City and County of San Francisco

whenever the peace officer on the scene has reason to believe

that the gathering endangers or is likely to endanger persons

or property.” Id. at 1367. We affirmed the district court’s

denial of qualified immunity to the officers, because “it was

clear at that time, as it is today, that the occurrence of limited

violence and disorder on one day is not a justification for ban-

ning all demonstrations, peaceful and otherwise, on the imme-

diately following day (or for an indefinite period thereafter).”43

42

The Menotti plaintiffs acknowledged that “the primary response of a

municipality to crime should be to arrest the criminals,” but faulted the

City for “fail[ing] to put enough officers on the streets on November 30th

to accomplish this task.” The Hankin plaintiffs also criticized the City’s

police department plan for law enforcement, arguing that “common police

tactics and planning would have provided a much more secure downtown

without sacrificing speech. For example, it is common police practice to

establish lines of defense around certain buildings before protestors arrive,

[and] to have squads specifically intended to pursue violent individuals

within crowds.”

43

Appellants contend that, since there was a decrease in violence in the

hours immediately prior to the imposition of Order No. 3, this statement

MENOTTI v. CITY OF SEATTLE 5983

Id. at 1372. However, we said in Collins that our holding was

narrow:

We need not address the question of whether at some

point—for example if there is widespread continuing

violence that appears to be beyond the ability of the

police to control—a time-limited ban on all demon-

strations might be lawful. Similarly, we need not

decide whether, and under what circumstances, spe-

cific, reliable information that organized violence of

a serious nature is about to occur might justify a

determination that a clear and present danger exists

warranting the banning of a particular demonstra-

tion.

means that here the City acted unlawfully in adopting Order No. 3. We

disagree.

In Collins, we described the “limited violence and disorder” that had

taken place as involving “a few injuries to people, none of them extensive

or life-threatening. The principal incidents involved property damage and

appear to have been confined to an area of about four blocks . . . . [M]ost

of the city was free from any form of unlawful conduct.” 110 F.3d at

1372. Here, the violence that had taken place was substantially more

severe, involving assaults on police and WTO delegates, fires, medical

emergencies, evacuation of retail stores, and a general loss of civic order.

Moreover, Collins invalidated an order that banned all demonstrations

throughout the whole county. In Seattle, however, protestors could still

demonstrate in all City areas outside the restricted zone.

Collins does not hold that, when a city is confronted with violent, dan-

gerous protests of the type in this case, it must wait for further violence

to occur before taking measures to restore civic order. Despite the dis-

sent’s characterization of Collins as involving “a similar emergency order

adopted under analogous circumstances,” Dissent at 6043-44, we face a

factually and legally distinguishable case, and the weight the dissent

places on Collins again shows the dissent’s minimization of the crisis in

Seattle. See also supra note 34 (recognizing that, on the undisputed facts,

the City had reason to believe and was entitled to believe that the violence

attendant to the WTO conference had not ended prior to Order No. 3’s

enactment, but had just temporarily subsided and would resume contem-

poraneous with WTO proceedings).

5984 MENOTTI v. CITY OF SEATTLE

Id. at 1373.

The scope of the violence that plagued Seattle on Novem-

ber 30, 1999, and the clear and present risks to world leaders

attending the WTO conference, render Collins inapposite. In

Collins, the violence that San Francisco faced before it

restricted protest was much less severe than Seattle faced in

this case. Further, San Francisco restricted speech throughout

the whole county,44 while Seattle merely restricted access

within a well-defined security zone to facilitate a public event.45

Mass demonstrations involving tens of thousands of partici-

pants are an important form of political protest and have a

great pedigree. Consider Martin Luther King, Jr.’s march on

Washington, at which he delivered the “I Have a Dream”

44

San Francisco County has a land area of 47 square miles. United

States Census Bureau, California Quick Facts, San Francisco County

(2000), available at http://quickfacts.census.gov/qfd/states/06/06075.html

(last revised Feb. 1, 2005).

45

The dissent argues that we have allowed the constitutional framework

“to be shaped” by our “characterization of the level of violence.” Dissent

at 6043 n.12. The dissent misunderstands our application of First Amend-

ment doctrine, which assesses the means the City used in light of the ends

the City needed to achieve. We have applied the correct legal framework

established by the Supreme Court. See, e.g., Ward, 491 U.S. at 799. Under

this precedent, understanding the City’s interest is essential to assessing

whether Order No. 3 was narrowly tailored to achieve that interest. See,

e.g., id. at 796-801. Collins also recognized that a heightened city interest

to end and prevent violence would require a different analysis:

Today, we decide only that the violence and disorder that

occurred in San Francisco on April 30 falls far short of the type

of occurrence that could have led any reasonable official to

believe that it would be constitutional to impose a city-wide ban

on all demonstrations, and that the law to that effect was clearly

established.

110 F.3d at 1373. In our view, Collins does not dictate a conclusion that

Order No. 3 is facially unconstitutional because Collins addressed a signif-

icantly broader restriction on speech enacted in response to a significantly

less dire situation.

MENOTTI v. CITY OF SEATTLE 5985

speech to a crowd of over 250,000 on the Washington Mall.

When a crowd is generally peaceful, large protests do not nec-

essarily create risks to public safety and security, even though

the crowd must be managed by a city. But once multiple

instances of violence erupt, with a breakdown in social order,

a city must act vigorously, and more extensively, to restore

order for all of its residents and visitors. Adding large num-

bers of police on the street might be the solution in some

cases, but in other cases could lead to more intense violence.

In light of the City’s significant governmental interest in

restoring and maintaining civic order to the core downtown

area, Order No. 3 and the restricted zone it implemented were

narrowly tailored.46

46

The dissent views Grossman v. City of Portland, 33 F.3d 1200 (9th

Cir. 1994), as presenting a “similar problem.” Dissent at 6045-46. The dis-

sent’s analogy to Grossman is off the mark, and reflects the dissent’s per-

vasive misapprehension of the scope of violence and disorder presented in

Seattle by the WTO protests. Grossman addressed the City of Portland’s

permitting scheme as applied to a “small, peaceful anti-nuclear protest,

involving six to eight people,” 33 F.3d at 1201-02, and is factually inappo-

site to this case which involved tens of thousands of protestors and hun-

dreds of violent and lawbreaking ones.

In addition to being factually inapposite, Grossman’s reasoning is not

persuasive in an analysis of whether Order No. 3 was a reasonable time,

place, and manner restriction. Portland’s permanent permitting scheme

made it unlawful “for any person to conduct or participate in any orga-

nized entertainment, demonstration, or public gathering, or to make any

address, in a park without . . . written permission.” Id. at 1204. Portland’s

stated interest was “protecting the safety and convenience of park users,”

and “maintaining normal quiet in the area adjacent to or near the park.”

Id. at 1205-06 & n.11. We held this scheme facially invalid in part because

the distinction between groups displaying messages and groups not dis-

playing messages was “absolutely empty in terms of the ordinance’s stated

goals.” Id. at 1206-07. But Grossman did not hold or suggest that such a

distinction is necessarily empty in all cases. Here, the record supports the

City’s distinction: The violence and disorder visiting downtown Seattle

during the four days of the WTO conference was incident to the presence

of protestors, not emergency personnel, business employees, or shoppers.

Grossman in no way controls, and is not persuasive on, the constitutional-

ity of a city’s necessary but temporary response to a breakdown of civic

order in an emergency setting. Grossman did not involve such a break-

down in order and is of no help in assessing the City of Seattle’s proper

response to a crisis that threatened the safety of Seattle’s visitors and citi-

zens.

5986 MENOTTI v. CITY OF SEATTLE

[8] While it is plausible that Order No. 3 was not the least

restrictive means of achieving the City’s goal, that is not what

Supreme Court precedent requires. There is no question that

the governmental interest here (security of the core downtown

area) would have been achieved less effectively absent Order

No. 3. Our role here is not to inject ourselves into the methods

of policing, and we do not do so here. Albertini, 472 U.S. at

689 (holding that the validity of a regulation “does not turn

on a judge’s agreement with the responsible decisionmaker

concerning the most appropriate method for promoting signif-

icant government interests”). We conclude that Order No. 3

was narrowly tailored to achieve a significant governmental

interest.47

3

[9] We must also assess whether Order No. 3 left ample

alternative channels of communication. We have observed

that “[t]he Supreme Court generally will not strike down a

governmental action for failure to leave open ample alterna-

tive channels of communication unless the government enact-

ment will foreclose an entire medium of public expression

47

The dissent incorrectly refers to our assessment of the City’s interest

as “confused and inconsistent” because we list the following: “protecting

the president and foreign dignitaries,” “maintaining public order,” “pro-

viding security to the core downtown area,” and “seeing that the WTO

delegates had the opportunity to conduct their business.” See Dissent at

6039-40 n.6. A rational evaluation of our discussion of the City’s interest,

however, yields a common thread: restoring and maintaining order to the

core downtown area so that the WTO conference could proceed safely and

securely.

Again, it is incorrect to urge that a city’s means of restoring order is not

narrowly tailored because the city has not fashioned a remedy aimed at

completely eliminating disorder across the entire city. See supra note 42.

For Order No. 3 to be narrowly tailored, Supreme Court precedent

requires only that it target and eliminate “no more [as opposed to no less]

than the exact source of the ‘evil’ it seeks to remedy.” Frisby, 487 U.S.

at 485. The City was entitled to seek a remedy in its core area where WTO

delegates resided and worked.

MENOTTI v. CITY OF SEATTLE 5987

across the landscape of a particular community or setting.”

Ctr. for Fair Pub. Policy, 336 F.3d at 1170 (quoting Colacur-

cio v. City of Kent, 163 F.3d 545, 555 (9th Cir. 1998)). A

time, place, and manner restriction does not violate the First

Amendment “simply because there is some imaginable alter-

native that might be less burdensome on speech.” Albertini,

472 U.S. at 689. “Of course, the First Amendment does not

guarantee the right to communicate one’s views at all times

and places or in any manner that may be desired.” Bay Area

Peace Navy, 914 F.2d at 1229 (quoting Heffron v. Int’l Soc’y

for Krishna Consciousness, Inc., 452 U.S.640, 647 (1981)).

However, an “alternative mode of communication may be

constitutionally inadequate if the speaker’s ‘ability to commu-

nicate effectively is threatened.’ ” Id. (quoting Taxpayers for

Vincent, 466 U.S. at 812).

[10] The application of these principles presents a very dif-

ficult question. On the one hand, the restricted zone carved

out a portion of the downtown area where protestors could not

deliver their message directly to delegates. On the other hand,

the protestors were able to demonstrate and express their

views immediately outside the restricted zone, including areas

directly across the street from the Washington State Conven-

tion & Trade Center and the Paramount Theater. The scope of

the restriction on protest extended only to the bounds of the

restricted zone, and did not apply generally to the City of

Seattle. The protestors could reasonably expect their protest to

be visible and audible to delegates, even if not as proximate

as the protestors might have liked.48

48

It cannot sensibly be argued that protesting outside the restricted zone

was not a viable alternative on the mistaken theory that the delegates were

not as accessible from that position. The Supreme Court has instructed that

the First Amendment does not require that individuals retain the most

effective means of communication, only that individuals retain the “ability

to communicate effectively.” Taxpayers for Vincent, 466 U.S. at 812; see

also Hill, 530 U.S. at 729 (upholding a law that prohibited individuals

from having a position that maximized accessibility to the target of their

speech).

5988 MENOTTI v. CITY OF SEATTLE

Given the protestors’ ability to communicate directly across

the street from most WTO venues, and given the violence that

Order No. 3 was aimed at preventing, we think the better

analysis favors the conclusion that Order No. 3 provided

ample alternatives for communication. See Hill, 530 U.S. at

729 (“Signs, pictures, and voice itself can cross an 8-foot gap

with ease.”). Appellants argue that they were prevented from

communicating with WTO delegates at close range, but there

is no authority suggesting that protestors have an absolute

right to protest at any time and at any place, or in any manner

of their choosing. Bl(a)ck Tea Soc’y v. City Of Boston, 378

F.3d 8, 14 (1st Cir. 2004) (“[A]lthough the opportunity to

interact directly with the body of delegates by, say, moving

among them and distributing literature, would doubtless have

facilitated the demonstrators’ ability to reach their intended

audience, there is no constitutional requirement that demon-

strators be granted that sort of particularized access.”).49

We do not minimize the value to society of facilitating pro-

test communications. Justice Brandeis in Whitney v. Califor-

nia gave us a classic statement on the values of free speech:

[The Founding Fathers] believed that freedom to

think as you will and to speak as you think are

means indispensable to the discovery and spread of

49

The district court also held that Order No. 3 provided ample alterna-

tive means for communication because protestors “had access to the media

and to the public beyond the zone.” The First Circuit recently expressed

a similar view in resolving a challenge to a demonstration zone established

by the City of Boston for the 2004 Democratic National Convention.

Bl(a)ck Tea Soc’y, 378 F.3d at 14. The First Circuit held that the demon-

stration zone provided ample alternative channels for communication

because “[a]t a high-profile event, such as the [Democratic National] Con-

vention, messages expressed beyond the first-hand sight and sound of the

delegates nonetheless have a propensity to reach the delegates through

television, radio, the press, the internet, and other outlets.” Id. Because we

hold that there is no constitutional requirement that protestors be allowed

to reach their designated audience in the precise manner of their choosing,

we do not evaluate this alternative argument.

MENOTTI v. CITY OF SEATTLE 5989

political truth; that without free speech and assembly

discussion would be futile; that with them, discus-

sion affords ordinarily adequate protection against

noxious doctrine; that the greatest menace to free-

dom is an inert people; that public discussion is a

political duty; and that this should be a fundamental

principle of the American government.

274 U.S. 357, 375 (1927) (Brandeis, J., concurring), over-

ruled by Brandenburg v. Ohio, 395 U.S. 444, 449 (1969).

Chief Justice Hughes reinforced these ideas a decade later in

De Jonge v. Oregon:

The greater the importance of safeguarding the com-

munity from incitements to the overthrow of our

institutions by force and violence, the more impera-

tive is the need to preserve inviolate the constitu-

tional rights of free speech, free press and free

assembly in order to maintain the opportunity for

free political discussion, to the end that government

may be responsive to the will of the people and that

changes, if desired, may be obtained by peaceful

means. Therein lies the security of the Republic, the

very foundation of constitutional government.

299 U.S. 353, 365 (1937). The Supreme Court over decades

has never departed from this commitment to First Amendment

values.50

50

In Texas v. Johnson, 491 U.S. 397, 414 (1989), Justice Brennan wrote

for the Court, “[i]f there is a bedrock principle underlying the First

Amendment, it is that the Government may not prohibit the expression of

an idea simply because society finds the idea itself offensive or disagree-

able. Punishing desecration of the flag dilutes the very freedom that makes

this emblem so revered, and worth revering.” Justice O’Connor has also

remarked that “[t]he hallmark of the protection of free speech is to allow

‘free trade in ideas’—even ideas that the overwhelming majority of people

might find distasteful or discomforting.” Virginia v. Black, 538 U.S. 343,

358 (2003).

5990 MENOTTI v. CITY OF SEATTLE

Perhaps it has not been said with more elegance than in

these words of Justice Brennan in the landmark decision of

New York Times Co. v. Sullivan: “[D]ebate on public issues

should be uninhibited, robust, and wide-open, and . . . it may

well include vehement, caustic, and sometimes unpleasantly

sharp attacks on government and public officials.” 376 U.S.

254, 270 (1964).51 However, we do not think that even the

most vital First Amendment expressions—and for purposes of

our analysis we consider political protest adverse to WTO

activities and internationalist philosophy to be political com-

ment at the core of the First Amendment—can be said auto-

matically to overcome the need of a city to maintain order and

security for its residents and visitors, in the face of violence.

Burson v. Freeman, 504 U.S. 191, 197 (1992) (“At the same

time, however, expressive activity, even in a quintessential

public forum, may interfere with other important activities for

which the property is used . . . . [T]he government may regu-

late the time, place, and manner of the expressive activity, so

long as such restrictions are content neutral, are narrowly tai-

lored to serve a significant governmental interest, and leave

open ample alternatives for communication.”).

[11] Accordingly, we apply the ample alternatives test with

a practical recognition of the dire facts confronting the City

in the early morning hours of December 1 during the WTO

conference.52 On the evening of the first day of the WTO con-

51

Though the singular importance of these First Amendment values

could hardly be overstated, it also must be kept in mind that the First

Amendment was held to be applicable against the States, and here a local

government, through the Fourteenth Amendment’s Due Process Clause.

De Jonge, 299 U.S. at 364; see also Palko v. Connecticut, 302 U.S. 319,

325 (1937), (incorporating the First Amendment’s protections into the

Fourteenth Amendment’s Due Process Clause on the view that the First

Amendment’s protections were “implicit in the concept of ordered liber-

ty”), overruled on other grounds by Benton v. Maryland, 395 U.S. 784,

794 (1969).

52

The dissent challenges our practical recognition of the emergency

confronting the City and our pragmatic application of the ample alterna-

MENOTTI v. CITY OF SEATTLE 5991

ference, and shortly before President Clinton was scheduled

to arrive, Seattle was tense, its streets were in disarray from

a long day of violent protest, and there was a general disrup-

tion of civic order. The “ample alternatives” cannot be taken

to mean that each protestor has the right to convey his or her

message in the manner preferred by that protestor—that

would be impossible where, as in this case, protestors num-

bered in the tens of thousands. The City was required to take

action to protect President Clinton and the delegates through-

out the three remaining days of the conference. If the City had

permitted chaos and violence to continue unabated, it would

not merely lose its standing as a host city for international

conferences, the City might also have sacrificed the safety of

the delegates and of its residents. The permissible communi-

cations available to protestors under Order No. 3 were sub-

stantial, not perfunctory. These available communications,

including protesting on the periphery of the restricted zone,

were perhaps not ideal for protestors who wanted to present

views in the face of delegates,53 but neither did they wholly

exclude protestors from the delegates’ purview.

tives test as lacking affirmative precedential sanction. See Dissent at 6052.

Our resolution of this issue is not contrary to established law and reflects

the principle that there is no constitutional right to deliver a confronta-

tional message of protest directly to an intended target. See Hill, 530 U.S.

at 716-18 (“[W]e have continued to maintain that ‘no one has a right to

press even ‘good’ ideas on an unwilling recipient. . . . While the freedom

to communicate is substantial, ‘the right of every person “to be let alone”

must be placed in the scales with the right of others to communicate.’ ”);

see also Bl(a)ck Tea Soc’y, 378 F.3d at 14 (“[A]lthough the opportunity

to interact directly with the body of delegates by, say, moving among them

and distributing literature, would doubtless have facilitated the demonstra-

tors’ ability to reach their intended audience, there is no constitutional

requirement that demonstrators be granted that sort of particularized

access.”).

The dissent’s unsupported assertion that Hill is inapposite because

WTO delegates were not “particularly vulnerable” and faced only “the

unpleasantness or inconvenience of a large demonstration,” see Dissent at

6039-40 n.6, understates the danger visiting delegates faced from violent

protestors determined to derail the WTO conference.

53

Some protestors may have preferred the restraints of Order No. 3 as

an aid to their own safety, as well as that of delegates. However, for pur-

5992 MENOTTI v. CITY OF SEATTLE

In the “ample alternatives” context, the Supreme Court has

made clear that the First Amendment requires only that the

government refrain from denying a “reasonable opportunity”

for communication. City of Renton, 475 U.S. at 54 (“[T]he

First Amendment requires only that Renton refrain from

effectively denying respondents a reasonable opportunity to

open and operate an adult theater within the city . . . .”). We

hold that, because Order No. 3 allowed protestors to demon-

strate directly across the street from the Washington State

Convention & Trade Center, the Paramount Theater, three out

of four major hotels where WTO delegates were staying, and

throughout the rest of downtown Seattle, Order No. 3 pro-

vided ample alternative channels of communication.54 We rec-

poses of assessing the constitutionality of Order No. 3, on the dueling

summary judgment motions, we may assume that protestors generally dis-

favored the restraint, and had views similar to those Appellants have

asserted.

54

The record is void of evidence supporting the dissent’s argument that

WTO delegates could see and hear protestors only within the 25-square

block restricted zone. See Dissent at 6050. Reason and precedent belie this

proposition. See Hill, 530 U.S. at 718 (holding that protestors had ample

alternatives to communicate their message even if they could not commu-

nicate with their intended audience where they preferred).

The dissent, most likely recognizing the lack of evidence to support its

argument, argues that “neither does the record reflect that the delegates

could see and hear protestors, or that the alternative means of communica-

tion available to the protestors were sufficient.” Dissent at 6050 n.16. But

contrary to the dissent’s assertion, the undisputed facts in the record show

that per the terms of Order No. 3 protestors could communicate their

views directly outside most of the hotels where delegates were staying.

See apps. A & B (showing that Order No. 3’s boundary bordered dele-

gates’ hotels); WTO After Action Report at 46 (recognizing that protestors

demonstrated at the front door of the Westin Hotel). The ability to so com-

municate is shown by appendices A and B. It is not disputed that major

venues for delegates, as identified on the appendices, included the Four

Seasons Olympic, Cavanaughs, the Sheraton, and the Westin hotels. Of

these, the Four Seasons Olympic, Cavanaughs, and the Westin were

located on the border of the restricted zone. Thus, the appendices show

without inference that Order No. 3 did not restrain protestors from making

MENOTTI v. CITY OF SEATTLE 5993

ognize that our decision takes into account a balance of the

competing considerations of expression and order. But we do

not think the Constitution requires otherwise.55

their views known on Fourth Avenue and on Sixth Avenue outside the

restricted zone across the street from three of the four identified major

venues for delegates situated in the restricted zone; only the Sheraton

Hotel is not on the restricted zone’s border. Consistent with Order No. 3

is the declaration of protestor Michael Gendler, submitted by the Appel-

lants, which confirms that protest was allowed on the east side of Fourth

Avenue. The appendices show that the east side of Fourth Avenue is adja-

cent to both Cavanaughs and the Four Seasons Olympic hotels. Order No.

3 on its face imposed no limitations on expressive activity outside the

restricted zone. See also WTO After Action Report at 45 (noting a “group

of about 1,000 people” that marched southbound on Fourth Avenue). We

draw no inferences in favor of our factual statement; rather, the dissent

ignores the undisputed facts that do not fit its legal theory.

Moreover, according to the undisputed declaration of Assistant Chief

Clark Kimerer, there were “several downtown hotels not within the buffer

zone housing WTO delegates which were excluded” because police

believed they could “provide adequate security.” It is also undisputed that

thousands of protestors did not abandon their demonstrations, but contin-

ued them throughout the rest of the downtown area for the duration of the

WTO conference. Id. at 43-46.

These alternative means of communication taken together are sufficient

as a matter of law under Supreme Court precedent because they gave a

reasonable opportunity for protestors to communicate. See City of Renton,

475 U.S. at 54.

55

We reject the City’s alternative contention that Order No. 3 was a per-

missible exercise of municipal control under a theory of an “emergency

exception.” Citing to out-of-circuit cases, the City argues that Order No.

3 was valid because it was taken in good faith and there was a factual

basis to decide that Order No. 3 was necessary to maintain order. See

Smith v. Avino, 91 F.3d 105, 109-10 (11th Cir. 1996), abrogated on other

grounds by Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998);

United States v. Chalk, 441 F.2d 1277, 1280 (4th Cir. 1971); Moorhead

v. Farrelly, 723 F. Supp. 1109, 1112-14 (D.V.I. 1989). These cases are

distinguishable, and the standard that they voice does not permit a suffi-

ciently nuanced review of the First Amendment rights at stake here. Smith

and Moorhead involved natural disasters that provided little or no warning

to municipalities. While Chalk involved civil unrest, it was the result of

5994 MENOTTI v. CITY OF SEATTLE

[12] We hold that Order No. 3 was a constitutional time,

place, and manner restriction on speech on its face.56 Because

an unpredictable clash between police and high school students, in con-

trast with this case, which involved a world trade conference planned

months in advance. Also, these courts employed the emergency analysis

in specific and limited contexts different from that here, the contexts of

natural disasters or of civil unrest confined in a smaller area, and in each

case the government’s tool was evening curfew. Our case involves politi-

cal protest coupled with chaos and violence, followed by a restricted zone

covering a large part of downtown Seattle, the core area including conven-

tion venues and delegates’ hotels, with the restriction applicable, day and

night, for the several remaining days of the conference. The legal analysis

justifying nighttime curfew in the “emergency” cases is not controlling

and does not permit adequate evaluation of the competing interests in the

face of the crisis that was presented. See also Oren Gross, Chaos and

Rules: Should Responses to Crises Always Be Constitutional?, 112 Yale

L.J. 1011, 1027-42 (2003) (outlining several problems with doctrines of

emergency powers). We decline to analyze Order No. 3 based on the

“emergency” doctrine, though as we have explained above, the nature of

the City’s interest in security and safety has been germane to our analysis

of the test for a reasonable time, place, and manner restriction.

56

At oral argument, the Hankin plaintiffs also contended that the City

should have reevaluated and reduced or eliminated the restricted zone on

December 2 or December 3, after the initial imposition of Order No. 3 on

December 1 had decreased the violence taking place in Seattle. We do not

consider this argument because it was not raised in the Hankin plaintiffs’

opening brief. Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir.

1988) (“It is well established in this Circuit that claims which are not

addressed in the appellant’s brief are deemed abandoned.”). Even if we

were to address this contention, the facts in this case justify the continued

imposition of the restricted zone. Although Order No. 3 had the effect of

decreasing violence in Seattle on December 1, there was undisputed evi-

dence that violence continued outside the restricted zone on December 2

and December 3, including an incident where protestors surrounded the

King County Jail (resulting in a lockdown of the jail). Given the events

that had taken place on November 30 and the ongoing violence from

December 1 to December 3, the City was justified in maintaining the

restricted zone to preserve order and security in the downtown area until

the WTO conference concluded. The restriction here lasted only four days.

Were we faced with such a restriction on public access over weeks or

months, a duty to reevaluate surely would arise at some point. But here,

the initial evaluation on December 1, in light of the limited duration of the

conference, is reasonably proximate to the duration of restraint.

MENOTTI v. CITY OF SEATTLE 5995

we hold that Order No. 3 was a valid time, place, and manner

restriction,57 we need not reach Appellants’ contention that

Order No. 3 was a prior restraint. Baugh, 187 F.3d at 1042

(“[E]ven prior restraints may be imposed if they amount to

reasonable time, place, and manner restrictions on speech.”).58

B

[13] Appellants contend that Order No. 3 (and Assistant

Chief Ferguson’s Operations Order) improperly gave unfet-

tered discretion to officers charged with enforcing the Order.

The Supreme Court has required that “a time, place, and man-

ner regulation contain adequate standards to guide the offi-

cial’s decision and render it subject to effective judicial

review.” Thomas v. Chicago Park Dist., 534 U.S. 316, 323

(2002). A regulation granting unfettered discretion to officials

charged with administering that regulation is impermissible

because it creates two dangers. First, such a regulation may

“intimidate[ ] parties into censoring their own speech, even if

57

We also note that the district court exercised supplemental jurisdiction

over Appellants’ claims under the Washington State Constitution, and dis-

missed those claims on summary judgment. Viewing these claims as a

facial challenge, we note that Washington interprets its free speech clause

in its Constitution in a manner parallel to the federal Constitution’s First

Amendment interpretation, except that Washington courts “diverge from

the Supreme Court on the state interest element of the time, place, and

manner test, as [the Washington courts] believe restrictions on speech can

be imposed consistent with [the Washington Constitution’s free speech

clause] only upon showing a compelling state interest.” Collier v. City of

Tacoma, 854 P.2d 1046, 1051 (Wash. 1993) (en banc). We hold that the

City’s interest in restoring and maintaining safety and security also was a

“compelling state interest” within the meaning of Washington law,

because “the purpose [is] a fundamental one and [Order No. 3] bear[s] a

reasonable relation to the achievement of the purpose.” See id. at 1054.

Thus, we affirm the district court’s summary judgment dismissal of

Appellants’ challenge to the validity of Order No. 3 under the Washington

State Constitution.

58

The First Circuit recently rejected a similar argument in Bl(a)ck Tea

Soc’y, 378 F.3d at 12.

5996 MENOTTI v. CITY OF SEATTLE

the discretion and power are never actually abused.” City of

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757

(1988); see also Griefen, 200 F.3d at 1262. Second, unfettered

discretion may permit the administering officials “to roam

essentially at will, dispensing or withholding permission to

speak, assemble, picket, or parade according to their own

opinions regarding the potential effect of the activity in ques-

tion on the ‘welfare,’ ‘decency,’ or ‘morals’ of the communi-

ty.” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153

(1969); see also Griefen, 200 F.3d at 1262.

We addressed this issue in Griefen. There, the Forest Ser-

vice had issued a closure order excluding the public from

coming within 150 feet of a portion of the Nez Perce National

Forest that was closed for construction and repair. Griefen,

200 F.3d at 1258. The closure order had exempted persons

with a permit authorizing entry, law enforcement officials,

rescue workers, and employees of the construction company

doing work in the restricted zone. Id. Appellants challenged

the closure order contending, inter alia, that the Forest Ser-

vice had too much discretion in administering the closure

order. Id. at 1262. We rejected this contention, explaining that

“[i]f a closure of a public forum is for a valid rather than a

disguised impermissible purpose, the potential for self-

imposed or government censorship . . . does not exist.” Id. We

held:

In First Amendment terms, the fact that discretion to

authorize entry to a closed area may be unfettered

during construction is of no concern. The process of

granting authority to enter a lawfully closed zone

differs markedly from the process of licensing

expressive activity. Such a process does not “engen-

der identifiable risks to free expression . . . .”

Id. at 1263 (quoting City of Lakewood, 486 U.S. at 757).

MENOTTI v. CITY OF SEATTLE 5997

Griefen is instructive in evaluating how Order No. 3 was

implemented through the Operations Order.59 We have deter-

mined that, on its face, Order No. 3 was a lawful time, place,

and manner restriction on speech.60 Thus, portions of down-

town Seattle covered by Order No. 3 were lawfully closed

with limited exceptions for public safety officials, business

owners, managers, or employees, and their customers.

59

The dissent argues that Griefen is inapposite because “the area into

which the plaintiffs sought entry to protest had temporarily lost its status

of public forum.” Dissent at 6054 n.17. The dissent incorrectly reads Grie-

fen, taking the sentence it relies upon out of context. In Griefen we said

that “the immediate area of a construction zone is not an area that has the

attributes of a public forum.” 200 F.3d at 1261 (emphasis added). We also

held in Griefen that “[w]hen expressive conduct occurs on public grounds,

like a national forest, the government can impose reasonable time, place,

and manner restrictions,” id. at 1259-60 (emphasis added), and “[i]f a clo-

sure of a public forum is for a valid rather than a disguised purpose, the

potential for self-imposed or government censorship . . . does not exist.”

Id. at 1262 (emphasis added). Moreover, we had “no doubt” in Griefen

that “a government entity may close areas of public forests under con-

struction and repair,” just as we had “no doubt” that a city “could tempo-

rarily close for good reasons . . . a street engulfed in a riot or an unlawful

assembly.” Id. at 1263.

The closure order we addressed in Griefen closed part of the Nez Perce

National Forest, which doubtless is and was a public forum. In any event,

in Griefen we analyzed not only the reasonable time, place, and manner

issues, id. at 1259-62, but also the protestors’ unbridled discretion chal-

lenge on the premise that the order closed a public forum. Id. at 1262-65.

Similarly, our analysis in this case of the reasonable time, place, and man-

ner issues raised by the Appellants proceeds on the premise that Order No.

3 closed a public forum. See discussion supra Part III.A. Likewise, our

analysis of Appellants’ unbridled discretion challenge proceeds on the

premise that Order No. 3 resulted in “a closure of a public forum [ ] for

a valid rather than a disguised purpose.” See Griefen, 200 F.3d at 1259-60.

60

The dissent appeals to Board of Airport Commissioners v. Jews for

Jesus, 482 U.S. 569, 573 (1987), but that case is inapposite as it involved

a speech restriction held to be facially unconstitutional under the First

Amendment’s overbreadth doctrine. Moreover, Order No. 3 did not

receive a “virtually open-ended interpretation,” but rather contained

express limits on whom officers could exclude from the restricted zone,

such as WTO personnel, workers, and public safety officials.

5998 MENOTTI v. CITY OF SEATTLE

[14] That officers had discretion to permit persons with a

reasonable purpose to enter the restricted zone does not render

Order No. 3 constitutionally deficient.61 Order No. 3 facially

restrained officers from excluding certain persons specifically

authorized to enter the restricted zone, and the Operations

Order clarified the phrase “reasonable purpose” specifically to

include “work, shopping at a specific location . . . , or other

like type reasonable activity.” We have upheld a grant of offi-

cial discretion to interpret what is “reasonable” in restricting

speech to further a significant government interest. See S.

Oregon Barter Fair v. Jackson County, 372 F.3d 1128, 1139-

41 (9th Cir. 2004) (rejecting an unfettered discretion argu-

ment where the statute gave a governing body power to

“charge permit applicants a fee reasonably calculated to reim-

burse the county for its reasonable and necessary costs in

receiving, processing and reviewing applications for permits

to hold outdoor mass gatherings” (emphases added)). Should

a pattern of abuse result from an official’s exercise of discre-

tion, the proper remedy is not to “insist[ ] upon a degree of

rigidity that is found in few legal arrangements,” but rather is

to seek remedy through as-applied challenges. Chicago Park

Dist., 534 U.S. at 325; S. Oregon Barter Fair, 372 F.3d at

1139.

Persons intending to protest were limited in time, place,

and manner of their speech, but were not intimidated into cen-

soring their speech because all protest activity was prohibited

for a valid purpose in the restricted zone and speech was not

restrained immediately outside the restricted zone. Further,

61

The dissent intimates that any statute that gives an officer discretion

to administer speech restrictions is unconstitutional because it provides

“the opportunity for abuse.” See Dissent at 6054. Our dissenting colleague

overstates the reach of the First Amendment’s unbridled discretion doc-

trine. A literal “opportunity for abuse” may be present whenever an armed

officer of the law is given authority to enforce a speech restriction. We are

concerned instead with whether Order No. 3’s contained “adequate stan-

dards to guide the official’s decision and render it subject to effective judi-

cial review.” Chicago Park Dist., 534 U.S. at 323 (2002).

MENOTTI v. CITY OF SEATTLE 5999

there was no danger on the face of Order No. 3 that officers

enforcing the restricted zone could indiscriminately withhold

permission to speak. Order No. 3 prohibited protest on any

topic within the restricted zone. Order No. 3 and the supple-

mental Operations Order did not give officers administering

the Orders discretion to allow persons with “favored” views

inside the zone and to exclude those with “disfavored” views.

Regardless of topic or viewpoint, protestors were prohibited

from the restricted zone, as were others who did not fall

within the limited exceptions.

[15] Assistant Chief Joiner’s Operation Order gave officers

guidance (including specific examples) of which individuals

were permitted into the restricted zone.62 The Operations

Order said, “[v]ehicles and/or pedestrians . . . are authorized

access inside the perimeter if they have a reasonable purpose

for entering the perimeter. A reasonable purpose includes

work, shopping at a specific location within the perimeter, or

62

The Menotti plaintiffs contended at oral argument that, under Hague

v. Committee for Indus. Org., 307 U.S. 496 (1939), the fact that officers

had any discretion to admit persons into the restricted zone rendered Order

No. 3 and the Operations Order unconstitutional. We disagree. In Hague,

the ordinance allowed a city official to deny a permit for a public meeting

for any reason believed by the official to be “proper,” provided that the

denial was for the purpose of “preventing riots, disturbances, or disorderly

assemblage.” Id. at 502 n.1; see also Forsyth County v. Nationalist Move-

ment, 505 U.S. 123, 133 (1992) (holding that a county’s parade ordinance

granted excessive discretion to a county administrator as to the proper

amount to charge for a parade permit, where there were “no articulated

standards either in the ordinance or in the county’s established practice”

and the city administrator was “not required to rely on any objective fac-

tors” to determine the proper fee). These cases do not constitutionally pro-

hibit the grant of any discretion to city officials. Rather, the cases hold that

city officials must be guided by objective factors and standards when mak-

ing decisions pursuant to a city ordinance that restricts speech. Here, offi-

cers were instructed to grant entrance into the restricted zone to those

persons who had a “reasonable purpose” (defined to include “work, shop-

ping at a specific location within the perimeter, or other like type reason-

able activity”) to enter the zone. The Menotti plaintiffs’ argument on this

score is unpersuasive.

6000 MENOTTI v. CITY OF SEATTLE

other like type reasonable activity.”63 As in Chicago Park Dis-

trict, “[t]hese grounds [were] reasonably specific and objec-

tive, and [did] not leave the decision to the whim of the

administrator.” 534 U.S. at 324 (internal quotation marks and

citation omitted); see also S. Oregon Barter Fair, 372 F.3d at

1132; cf. Gaudiya Vaishnava Soc’y v. City and County of San

Francisco, 952 F.2d 1059, 1065-66 (9th Cir. 1991) (“The

ordinance [violates the First Amendment because it] provides

no specific grounds for granting or denying permits: no

explicit limits are placed on the Chief of Police’s discre-

tion.”). We hold that Order No. 3 and the Operations Order

did not provide unfettered discretion to officers who were

administering the restricted zone.

C

We next address the plaintiffs’ contention that Order No. 3

was unconstitutional “as applied.” “An as-applied challenge

alleges that the restriction on speech is unconstitutional as

applied to the litigant’s particular speech activity, even though

the law may be capable of valid application to others.” Kuba

v. 1-A Agric. Ass’n, No. 02-16989, slip op. 14635, 14645 (9th

Cir. Oct. 19, 2004) (internal quotation marks omitted) (quot-

ing Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.

1998)).64 The district court concluded that Order No. 3 as

63

The dissent argues that the Operations Order allowed “officers to

determine unilaterally what constitutes a ‘reasonable purpose,’ with no

further elaboration on what might be considered ‘other like type reason-

able activity’ ” Dissent at 6056. The dissent’s selective quotation ignores

the guidance provided by the enumeration of specific activities that consti-

tuted a “reasonable purpose,” such as working or shopping. That the Oper-

ations Order listed these commercial activities served to “guide the

official’s decision and render it subject to effective judicial review.” Chi-

cago Park Dist., 534 U.S. at 323.

64

In Kuba we addressed a facial and as-applied challenge to a state asso-

ciation’s policy that prohibited individuals from demonstrating at the asso-

ciation’s rodeo and circus, except in designated “free expression zones.”

Kuba, 387 F.3d at 853-55. We held the policy facially unconstitutional

MENOTTI v. CITY OF SEATTLE 6001

applied to the Hankin plaintiffs was a valid time, place, and

manner restriction. The Hankin plaintiffs contend that Order

No. 3 was unconstitutional as applied to them because the

City had adopted a policy of arresting only anti-WTO prote-

stors within the restricted zone.

because the association failed to prove how a handful of demonstrators

would cause congestion or a danger to safety, see id. at 859-60, and

because the association’s policy was not narrowly tailored when it penned

demonstrators in “three small, fairly peripheral areas” and did not “suffi-

ciently match” the interest of preventing congestion that could have been

achieved with equal effectiveness but less speech-restrictive alternatives,

see id. at 861-62. Kuba differs from the case before us because Kuba did

not involve significant prior violence such as had marred Seattle. The cor-

responding governmental interest in Kuba, in preventing congestion with

potential impact on safety, before the congestion occurred, was less than

Seattle’s interest in restoring order, after widespread violence, including

vandalism and riot.

MENOTTI v. CITY OF SEATTLE 6003

Volume 2 of 2

6004 MENOTTI v. CITY OF SEATTLE

Hankin submitted a declaration in opposition to the City’s

motion for summary judgment in which he testified that, on

December 1, 1999, he participated in a group march and pro-

test at Westlake Park within the restricted zone. Hankin testi-

fied that police surrounded the group and arrested them

without any warning, and without any determination as to

whether those persons were within the exemptions to Order

No. 3. Hankin testified that, immediately after arresting the

large group of protestors Seattle police then turned to another

portion of Westlake Park, where Hankin was standing, and

arrested him and others beside him without determining

whether these persons came within the exemptions to Order

No. 3. Accepting Hankin’s declaration testimony as true, as

we must for the purposes of reviewing the district court’s

grant of summary judgment to the City, Hankin’s testimony

is evidence that the arrest of this group of persons was a “dis-

MENOTTI v. CITY OF SEATTLE 6005

criminatory enforcement of a speech restriction amount[ing]

to viewpoint discrimination in violation of the First Amend-

ment.” Foti, 146 F.3d at 635; see also Police Dept. v. Mosley,

408 U.S. 92, 95 (1972) (invalidating, on Equal Protection

grounds, a disorderly conduct ordinance which barred picket-

ing within 150 feet of a school in session, but exempted

peaceful picketing of any school involved in a labor dispute,

because “the operative distinction is the message on a picket

sign”).

[16] The City may be held liable for such a violation only

if the arresting officers’ conduct was a product of City policy

or custom. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-

694 (1978). As we have explained: “Liability may attach to

a municipality only where the municipality itself causes the

constitutional violation through ‘execution of a government’s

policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official

policy.’ ” Ulrich v. City and County of San Francisco, 308

F.3d 968, 984 (9th Cir. 2002) (quoting Monell, 436 U.S. at

694). A municipal “policy” exists when “a deliberate choice

to follow a course of action is made from among various

alternatives by the official or officials responsible for estab-

lishing final policy with respect to the subject matter in ques-

tion.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483

(1986) (plurality opinion); Fairley v. Luman, 281 F.3d 913,

918 (9th Cir. 2002) (per curiam).

[17] There are three ways to show a policy or custom of a

municipality: (1) by showing “a longstanding practice or cus-

tom which constitutes the ‘standard operating procedure’ of

the local government entity;” (2) “by showing that the

decision-making official was, as a matter of state law, a final

policymaking authority whose edicts or acts may fairly be

said to represent official policy in the area of decision;” or (3)

“by showing that an official with final policymaking authority

either delegated that authority to, or ratified the decision of,

a subordinate.” Ulrich, 308 F.3d at 984-85 (internal quotation

6006 MENOTTI v. CITY OF SEATTLE

marks and citations omitted). We have held that a municipal

policy “may be inferred from widespread practices or evi-

dence of repeated constitutional violations for which the

errant municipal officers were not discharged or reprimand-

ed.” Nadell v. Las Vegas Metro. Police Dept., 268 F.3d 924,

929 (9th Cir. 2001) (internal quotation marks and citation

omitted).

Although Schell (as then-Mayor of the City) was the City’s

chief policymaker at the time Order No. 3 was implemented,

he testified in deposition that he had “relied on the [police]

officers to carry out [Order No. 3] and make sure we had a

secure zone for our — for the safety of our citizens and the

safety of the delegates.” Thus, Schell can be said to have “del-

egated that authority to . . . a subordinate,” in this case, Police

Chief Stamper. See Ulrich, 308 F.3d at 985. Chief Stamper,

in turn, delegated the responsibility of planning the City’s

response to the WTO protests to Assistant Chief Joiner.

Joiner, in explaining the City’s implementation of Order No.

3, said that: “We’re going . . . to take the core area where the

[WTO] conference is occurring . . . and prohibit any demon-

strations within that core area for the remainder of the week.”

In support of their contention that the City had adopted a

policy of suppressing anti-WTO speech in applying Order No.

3, the Hankin plaintiffs submitted declarations65 from persons

stating that police refused to allow them to enter the restricted

zone, even though they came within one of the exceptions to

Order No. 3, unless they removed anti-WTO buttons or stick-

ers.66 Martha Ehman testified in a declaration that on Decem-

65

These declarations were submitted in support of the Menotti plaintiffs’

motion for partial summary judgment, and in opposition to the City’s

motion for partial summary judgment.

66

Former-Police Chief Stamper also testified via declaration that “the

action of the officers [administering the restricted zone] when confronted

with that WTO slash through it . . . was, you know, take the symbol away,

put it in your backpack, or whatever the solution was to that particular

problem.”

MENOTTI v. CITY OF SEATTLE 6007

ber 1, 1999, officers enforcing the restricted zone permitted

her to enter after she said that she was going to work in the

restricted zone. She testified that, after being permitted to

enter, officers told her to stop and remove a piece of tape

from her backpack that had the words “NO WTO” on it, and

that officers told her she would be arrested if she did not com-

ply. Ehman removed the tape and was allowed to proceed.

Lauren Holloway testified in a declaration that, on December

1, 1999, officers enforcing the restricted zone forcibly

removed anti-WTO stickers from her clothing on the basis

that she was in the “No Protest Zone.” Ronald Matyjas testi-

fied that, on December 1, 1999, while walking to his office

located in the restricted zone, an officer told him that he could

not wear the “No WTO” sign that he had affixed to his jacket,

and that another officer tore off the sign without permission.

Andrew Russell testified that, on December 1, 1999, he was

refused entry into the restricted zone because he was wearing

a button that said “No WTO,” and only after removing the

button was he was allowed into the restricted zone. Rita Her-

kal testified that, on December 1, 1999, officers forcibly

removed anti-WTO stickers from her clothing, and that offi-

cers told her “You’re not allowed to wear stickers.”

[18] The statements of Assistant Chief Joiner and the

declarants, taken in the light most favorable to Appellants,

create a genuine issue of material fact as to whether it was the

policy of the City to apply Order No. 3 in a manner that

excluded only anti-WTO protestors. Viewing the evidence in

the light most favorable to the Hankin plaintiffs, such a policy

may be inferred due to the “widespread practices or evidence

of repeated constitutional violations” and the absence of evi-

dence that police officers were discharged or reprimanded for

making the discard of anti-WTO expressive materials an entry

ticket to the restricted zone. See Nadell, 268 F.3d at 929

(internal quotation marks and citation omitted). We reverse

the district court’s grant of summary judgment to the City on

the constitutionality of Order No. 3 as applied to the Hankin

plaintiffs, and we remand this issue for trial. Because we so

6008 MENOTTI v. CITY OF SEATTLE

hold, we reverse the district court’s order denying class certi-

fication and remand that issue to the district court for reconsider-

ation.67

However, we affirm the grant of summary judgment to

individual defendants Schell and Stamper regarding the

Hankin plaintiffs’ claims against them. “Supervisory liability

is imposed against a supervisory official in his individual

capacity for his own culpable action or inaction in the train-

ing, supervision, or control of his subordinates, for his acqui-

escence in the constitutional deprivations of which the

complaint is made, or for conduct that showed a reckless or

callous indifference to the rights of others.” Larez v. City of

Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal

punctuation, quotation marks, and citations omitted). Here,

Appellants have presented no evidence, other than the adop-

tion of Order No. 3 and the Operations Order, that either

Schell or Stamper personally took part in the alleged constitu-

tional violations or caused the constitutional violations

through their individual actions. We have already held Order

No. 3 to be facially constitutional, and without evidence that

67

As Order No. 3 was on its face a reasonable time, place, and manner

restriction, it follows that all persons who did not enter or who were

excluded from the restricted zone because of that order cannot assert a

valid claim individually or as a class member. However, any persons who

were excluded solely because of the content of their visible communica-

tions without regard to the exemptions within Order No. 3, or those such

as employees and shoppers, who came within Order No. 3’s exemptions,

but who were allowed to enter the restricted zone only after removing visi-

ble communications, such as buttons or stickers, hostile to the WTO, may

assert an as-applied First Amendment claim. Their ability to assert a claim

against the City, as contrasted with a claim against the specific officers

with whom they interacted, will depend on the factual determination

whether their claim is based on a policy of the City of Seattle, an issue on

which we have identified a genuine issue of material fact requiring trial.

As to any such claimants, we express no opinion whether the requirements

for class action certification may be satisfied, leaving that issue for initial

consideration in the district court after any due and appropriate proceed-

ings.

MENOTTI v. CITY OF SEATTLE 6009

Schell and Stamper personally played a role in the alleged

constitutional violations, either directly or by acquiescence or

culpable indifference, there is no basis for liability against

them in their individual capacities. The evidence presented by

the plaintiffs was not sufficient to establish or create a genu-

ine issue of material fact concerning the supervisory liability

of Schell or Stamper.

IV

A

We turn to the individual claims of the Menotti plaintiffs.

With regard to Menotti, the district court concluded that Seat-

tle police had probable cause to believe Menotti had commit-

ted the crime of pedestrian interference68 and obstructing a

police officer.69 The district court granted summary judgment

on Menotti’s Fourth Amendment claim and state law false

arrest claim. The district court also granted summary judg-

ment to the City on Menotti’s First Amendment claim, hold-

ing that Menotti had failed to present evidence that the

officers who arrested Menotti acted under a City policy.

Menotti appeals the district court’s grant of summary judg-

ment to the City and denial of his motion for summary judg-

ment on these issues.

68

Seattle Municipal Code section 12A.12.015 prohibits pedestrian inter-

ference. A person commits pedestrian interference where the person, inter

alia, “intentionally obstructs pedestrian or vehicular traffic.” To “obstruct

pedestrian or vehicular traffic” is defined as “to walk, stand, sit, lie, or

place an object in such a manner as to block passage by another person

or a vehicle, or to require another person or a driver of a vehicle to take

evasive action to avoid physical contact.” Seattle Mun. Code

§ 12A.12.015.

69

Seattle Municipal Code section 12A.16.010 prohibits obstructing a

public officer. A person obstructs a peace officer where the person, inter

alia, “[i]ntentionally and physically interferes with a public officer” or

“[i]ntentionally hinders or delays a public officer by disobeying an order

to stop given by such officer.” Seattle Mun. Code § 12A.16.010.

6010 MENOTTI v. CITY OF SEATTLE

We first address whether the police had probable cause for

Menotti’s arrest. “The test for probable cause is whether facts

and circumstances within the officers’ knowledge are suffi-

cient to warrant a prudent person, or one of reasonable cau-

tion, to believe, in the circumstances shown, that the suspect

has committed, is committing or is about to commit an

offense.” United States v. Puerta, 982 F.2d 1297, 1300 (9th

Cir. 1992) (internal punctuation, quotation marks, and citation

omitted). The question presented on Menotti’s Fourth Amend-

ment claim is whether a prudent person in the position of the

officers who arrested Menotti would have believed that

Menotti was committing the offenses of pedestrian interfer-

ence and obstructing an officer.

[19] Menotti submitted video evidence showing that just

before his arrest Menotti addressed a small group while

pedestrians unaffiliated with the group walked by unimpeded.

This evidence is contradicted by the deposition testimony of

Seattle Police Officer Christopher Myers, one of the officers

who arrested Menotti, who testified that he saw Menotti

“causing a group to block both vehicular and pedestrian traf-

fic.” We, of course, are not empowered to make factual deter-

minations when faced with conflicting evidence. In this

procedural context, where summary judgment was given to

the City, we must credit the video evidence submitted by

Menotti, and consider all evidence in the light most favorable

to Menotti. Menotti’s video evidence showed that neither he

nor the group he addressed interfered at all with pedestrians,

and a reasonable jury could find from this evidence, if the jury

failed to credit Officer Myers’s testimony, that the officers did

not have probable cause to arrest Menotti. A genuine issue of

material fact concerning whether pedestrians were impeded

by Menotti exists, and requires trial for resolution. See Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 247-57 (1986).

[20] We also hold that a genuine issue of material fact

exists as to whether police had probable cause to arrest

Menotti for obstructing an officer. Menotti testified in deposi-

MENOTTI v. CITY OF SEATTLE 6011

tion that when officers approached his group, the officers

issued no directives or warnings, and that he ran because the

officers wanted the group to disperse. Similarly, the video

evidence submitted by Menotti does not show any obvious

audible warnings by police immediately before Menotti’s

arrest. In contrast, Officer Myers testified in deposition that,

when officers approached Menotti’s group, they yelled “stop,

police,” and that Menotti started running immediately thereaf-

ter. Whatever may be decided by the trier of fact, at the sum-

mary judgment stage we must credit Menotti’s testimony and

conclude that a reasonable jury could determine that there was

not probable cause to arrest Menotti for obstructing an officer.

A genuine issue of material fact exists whether there was

probable cause to arrest Menotti for obstructing an officer,

and this issue also must be resolved by trial.

[21] We hold that the district court erred by granting sum-

mary judgment for the City on Menotti’s Fourth Amendment

claim. We reverse the district court’s grant of summary judg-

ment dismissing Menotti’s § 1983 claim under the Fourth

Amendment and his state law false arrest claim. We remand

these claims to the district court for further proceedings.

We turn to Menotti’s First Amendment claim. Menotti

alleged in his complaint that the City violated his First

Amendment rights when officers arrested him. The district

court granted summary judgment to the City, reasoning that

Menotti “failed to produce sufficiently probative evidence of

any City policy or custom that caused a deprivation of his

constitutional rights.” Based on our ruling above that there is

a genuine issue of material fact whether the City had a policy

during the WTO conference of suppressing anti-WTO views

of persons who might otherwise have qualified for entry into

the restricted zone, we reverse the district court’s judgment on

this issue and remand it to the district court for trial.

6012 MENOTTI v. CITY OF SEATTLE

B

Sellman was arrested for distributing leaflets within the

restricted zone, and the viability of his claims depends

entirely on the resolution of his constitutional challenge to

Order No. 3. Sellman presented no evidence that he was tar-

geted for arrest because of his anti-WTO views. Rather, the

undisputed testimony revealed that Sellman was arrested only

after Detective Stevens ascertained that Sellman had violated

Order No. 3 by being in the restricted zone when he did not

come within one of its exceptions, and further that Sellman

did not obey an order to disperse. We affirm the district

court’s grant of summary judgment in favor of defendants on

Sellman’s claims.70

C

Stedl testified in deposition that his bag was unlawfully

searched and his fliers unlawfully seized by an unidentified

officer. Stedl contended that the City was liable, based on 42

U.S.C. § 1983, for an unlawful search and seizure. The dis-

trict court granted summary judgment for the City on Stedl’s

claim, holding that Stedl had not presented evidence of a City

policy to commit unlawful seizures. As we have already

explained, to prevail on a theory of municipal liability, Stedl

must show that the unidentified officer acted pursuant to an

70

The parties dispute whether Sellman appeals the district court’s grant

of summary judgment to Officer Stevens, the officer who arrested Sell-

man. Sellman’s only reference to Officer Stevens in his opening brief was

a statement that “[s]ummary judgment should be entered in Sellman’s

favor, with remand to determine the damages caused by the City, Schell,

Stamper, and Stevens.” Because this contention was not supported by

argument in Sellman’s opening brief, we deem it waived. Humble v. Boe-

ing Co., 305 F.3d 1004, 1012 (9th Cir. 2002) (“Issues raised in a brief but

not supported by argument are deemed abandoned absent manifest injus-

tice.”); see also Fed. R. App. P. 28(a)(9)(A) (requiring that appellant’s

brief must contain “appellant’s contentions and the reasons for them, with

citations to the authorities and parts of the record on which the appellant

relies”).

MENOTTI v. CITY OF SEATTLE 6013

official policy or custom of the City. Monell, 436 U.S. at 691-

694; Ulrich, 308 F.3d at 984.

There was no evidence of any City policy authorizing the

search of backpacks or the seizure of fliers. Stedl argues that

such a policy may be inferred from an alleged pattern of such

practices by officers during the WTO conference, but he

offered deposition testimony of only two persons, himself and

one other protestor, who said that police had unlawfully

searched their bags. Even viewing the evidence in the light

most favorable to Stedl, he has not offered evidence proving

the first method of satisfying Monell’s policy requirement:

there was not evidence of a “longstanding practice or custom

which constitutes the ‘standard operating procedure’ of the

local government entity.” Ulrich, 308 F.3d at 984 (quoting

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).

Similarly, Stedl didn’t show “that [the unidentified officer]

was, as a matter of state law, a final policymaking authority

whose edicts or acts may fairly be said to represent official

policy in the area of decision.” Id. at 985 (internal quotation

marks omitted). Nor did Stedl’s evidence establish that “an

official with final policymaking authority either delegated that

authority to, or ratified the decision of, a subordinate.” Id. A

showing of constitutional wrong by a single police officer

may support a claim against that officer, but a claim against

a municipality may proceed only with evidence that the offi-

cer acted under the municipality’s policy or custom. Here,

Stedl did not show that the unidentified officer acted under an

official policy or custom of the City.

We affirm the district court’s summary judgment in favor

of the City on Stedl’s claims.

D

Skove brought First Amendment and Fourth Amendment

claims against Officer Smith for Smith’s seizure of Skove’s

6014 MENOTTI v. CITY OF SEATTLE

sign.71 The district court concluded that Smith was entitled to

qualified immunity on Skove’s Fourth Amendment claim

because Smith had probable cause to believe that Skove had

committed a crime (violating Order No. 3), and because the

seizure involved exigent circumstances. The district court also

granted summary judgment to Smith on Skove’s First Amend-

ment claim, holding that Smith’s actions were a valid time,

place, and manner restriction on speech. Skove appeals the

district court’s grant of summary judgment to Smith on both

claims.

We review the district court’s grant of qualified immunity

de novo. Elder v. Holloway, 510 U.S. 510, 516 (1994). Under

Saucier v. Katz, 533 U.S. 194 (2001), we take a two-step

approach in determining whether Smith is entitled to qualified

immunity. First, we determine whether Smith violated

Skove’s constitutional right. Id. at 200-01. If we answer in the

affirmative, we proceed to determine whether that right was

“clearly established” such that “it would be clear to a reason-

able officer that his conduct was unlawful in the situation he

confronted.” Id. at 201-02. If we determine at the first step

that there was no constitutional violation, that ends the quali-

fied immunity inquiry. Id.

We address Skove’s Fourth Amendment claim and con-

sider whether Smith violated Skove’s constitutional rights by

seizing Skove’s sign. Under the Fourth Amendment, the

“right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and sei-

zures, shall not be violated.” U.S. Const. amend. IV. The

Supreme Court has held that “in the ordinary case, seizures of

71

In his complaint, Skove alleged that Order No. 3 was unconstitutional

as applied to him, and that Officer Smith violated Skove’s First Amend-

ment and Fourth Amendment rights in seizing Skove’s sign. Skove did not

allege in his complaint that the City was liable under a theory of municipal

liability for an alleged Fourth Amendment violation stemming from

Smith’s seizure of his protest sign.

MENOTTI v. CITY OF SEATTLE 6015

personal property are unreasonable within the meaning of the

Fourth Amendment, without more, unless . . . accomplished

pursuant to a judicial warrant issued by a neutral and detached

magistrate after finding probable cause.” Illinois v. McArthur,

531 U.S. 326, 330 (2001) (internal quotation marks omitted).

However, when faced with “special law enforcement needs,”

the Supreme Court “has found that certain general, or individ-

ual, circumstances may render a warrantless search or seizure

reasonable.”72 Id.

[22] Smith contends that his seizure of Skove’s sign was

lawful because Smith had probable cause to arrest Skove for

being in the restricted zone and not within Order No. 3’s

exemptions. We agree that Smith had probable cause to arrest

Skove because, by engaging in protest inside the restricted

zone without evidence that he was exempt, Skove had vio-

lated Order No. 3. However, it is uncontested that Smith did

not arrest Skove. Had Skove been arrested, ample precedent

would permit a search or seizure “incident to arrest.” Knowles

v. Iowa, 525 U.S. 113, 116-17 (1998) (noting that the two his-

torical rationales for the search incident to arrest exception are

“(1) the need to disarm the suspect in order to take him into

custody, and (2) the need to preserve evidence for later use at

trial”). We decline to extend the doctrine of “search incident

72

Exceptions to the warrant requirement, for example, include adminis-

trative searches, Donovan v. Dewey, 452 U.S. 594, 598 (1981), searches

incident to arrest, see United States v. Edwards, 415 U.S. 800, 802-03

(1974), automobile checkpoint searches, see Mich. Dep’t of State Police

v. Sitz, 496 U.S. 444, 455 (1990), reasonable detention of suspects during

the execution of a search warrant, see Michigan v. Summers, 452 U.S. 692,

702-05 (1988), limited searches for weapons based on reasonable suspi-

cion, see Terry v. United States, 392 U.S. 1, 27 (1968), and exigent cir-

cumstances, see United States v. Place, 462 U.S. 696, 701 (1983). We

have defined exigent circumstances to include “those circumstances that

would cause a reasonable person to believe that entry . . . was necessary

to prevent physical harm to the officers or other persons, the destruction

of relevant evidence, the escape of the suspect, or some other consequence

improperly frustrating legitimate law enforcement efforts.” United States

v. McConnery, 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc).

6016 MENOTTI v. CITY OF SEATTLE

to arrest” to give protection for a warrantless search or seizure

when no arrest is made. It may be that Officer Smith declined

to arrest Skove because Skove walked away and Officer

Smith decided to maintain his post. Whatever Officer Smith’s

reason for not making the arrest, the seizure cannot be justi-

fied as incident to an arrest. Had an arrest been made, Smith

could argue the sign was seized as evidence, McArthur, 531

U.S. at 331-32, but without an arrest, we do not see how

Smith legitimately could be concerned about a need to pre-

serve evidence of a crime from being destroyed.73

[23] There is some merit to the argument that where there

is probable cause to arrest, evidence of the crime may be

seized and the seizure considered valid even if the arrest is not

completed. See Roaden v. Kentucky, 413 U.S. 496, 504 (1974)

(recognizing that “the probable cause for an arrest might jus-

tify the seizure of weapons, or other evidence or instruments

of a crime, without a warrant”). A supporting reason would be

that police in some settings might have to disregard compet-

ing duties to pursue and complete an arrest where, as here, a

suspect walks away. Yet, we reject this position because, if

police aims to arrest are so weak that they do not detain a sus-

pect, then it seems incongruous to say that a seizure of evi-

dence can be lawfully made without a warrant. We decline to

extend the exception to warrant requirements for seizures

incident to arrest to instances in which a police officer seizes

evidence of a crime, but makes no arrest.

Viewing the evidence in the light most favorable to Skove,

as we must in reviewing the district court’s grant of summary

judgment to Smith based on qualified immunity, when Smith

73

Smith argues that Skove voluntarily abandoned Skove’s interest in the

sign when he walked away from Smith after the seizure. This argument

misses the point. The sign was seized before Skove walked away. The

lawfulness of the seizure had to be shown based on evidence existing

before or at the time of the seizure. Skove’s departure after the sign’s sei-

zure is not material on this score.

MENOTTI v. CITY OF SEATTLE 6017

encountered Skove there was no exigency requiring seizure of

Skove’s sign without a warrant. When the encounter took

place on December 2, 1999, Seattle police had met with tens

of thousands of non-violent and violent protestors who had

inflicted severe damage on the downtown, which led to the

City’s promulgation of Order No. 3. The City’s law enforce-

ment resources (and officers themselves) had been taxed

severely. But Smith faced a relatively calm situation at the

point and time he encountered Skove on December 2. The

City did not present evidence that Smith was dealing with vio-

lent protestors when he encountered Skove. By contrast,

Smith’s deposition testimony indicated that, just before he

saw Skove, Smith was talking with a fellow officer and “tak-

ing in the atmosphere.” Viewing the evidence in the light

most favorable to Skove, Smith when seizing Skove’s sign

was not then actively engaged in preventing others from

entering the restricted zone, nor was he immediately engaged

in combating violence. In fact, Skove submitted video evi-

dence that, in the light most favorable to Skove, shows that

others were not immediately present and the circumstances

were not exigent when Smith confronted Skove and seized his

sign.

[24] We also decline to establish a general exception to the

Fourth Amendment’s warrant requirement for conduct that,

absent special needs consistent with the Supreme Court’s pre-

cedents, is asserted to be “reasonable.” It has long and consis-

tently been the law that exceptions to the warrant requirement

preceding searches and seizures are for defined categorical

circumstances. See McArthur, 531 U.S. at 330-31 (listing

examples of exceptions to the warrant requirement). Because

an arrest was not made, and no established exception justifies

the warrantless seizure on undisputed facts, we conclude that

there is a genuine issue of material fact bearing on exigency

and whether Smith’s seizure of Skove’s sign violated the

Fourth Amendment’s protection against unreasonable sei-

zures.

6018 MENOTTI v. CITY OF SEATTLE

We proceed to the second step of qualified immunity analy-

sis, under which we must determine whether the right was

clearly established. Saucier, 533 U.S. at 201. We have held:

Whether a right is “clearly established” for purposes

of qualified immunity is an inquiry that must be

undertaken in light of the specific context of the

case, not as a broad general proposition.” In other

words, “[t]he contours of the right must be suffi-

ciently clear that a reasonable official would under-

stand that what he is doing violates that right.”

Graves v. City of Coeur d’Alene, 339 F.3d 828, 846 (9th Cir.

2003) (quoting Saucier, 533 U.S. at 201-02) (alteration in

original).

[25] The question before us then becomes whether a rea-

sonable officer in Smith’s position would have understood

that he could not lawfully seize Skove’s sign absent an arrest

of Skove or exigent circumstances. We have rejected the posi-

tion that a seizure could be made based on probable cause to

arrest, when the arrest was not completed. Moreover, viewing

the evidence in the light most favorable to Skove, we cannot

say that the circumstances were indisputably exigent at the

time and place Officer Smith confronted Skove and seized his

sign. Because the exceptions to the Fourth Amendment’s war-

rant requirement have been categorically defined, and because

“in the ordinary case, seizures of personal property are unrea-

sonable within the meaning of the Fourth Amendment . . .

unless . . . accomplished pursuant to a judicial warrant issued

by a neutral and detached magistrate after finding probable

cause,” McArthur, 531 U.S. 326, 330-31 (internal quotation

marks omitted), we hold that a reasonable officer in Smith’s

position would have understood that his warrantless seizure of

Skove’s sign without an arrest and without exigency offended

the guarantees of the Fourth Amendment. We therefore

MENOTTI v. CITY OF SEATTLE 6019

reverse the district court’s grant of qualified immunity to

Smith on Skove’s Fourth Amendment claim.74

[26] As for Skove’s First Amendment claim against Smith,

we determine that the district court properly granted summary

judgment to Smith. To prevail on his First Amendment claim,

Skove must provide evidence showing that Smith “deterred or

chilled [Skove’s] political speech and such deterrence was a

substantial or motivating factor in [Smith’s] conduct.” Sloman

v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994). Smith testi-

fied in deposition that he approached Skove and seized

Skove’s sign because Skove was engaged in protest, an activ-

ity Smith knew to be prohibited by Order No. 3. Skove sub-

mitted no evidence to the district court to establish that

Smith’s actions were motivated by opposition to Skove’s

political beliefs or that Smith’s actions were motivated by a

desire to chill Skove’s speech. Viewing the evidence in the

light most favorable to Skove, we conclude that the district

court properly granted summary judgment to Smith on

Skove’s First Amendment claim, and we affirm the district

court on this issue.

74

Skove contends that he is entitled not only to reversal of the summary

judgment given Smith, but also to a grant of summary judgment establish-

ing Smith’s liability for the seizure of Skove’s sign. On this requested

summary relief for Skove, we view the evidence in the light most favor-

able to Smith, rather than as we have viewed it above most favorably to

Skove. Smith testified by declaration that when he seized Skove’s sign he

intended to “detain Mr. Skove to determine whether he was authorized to

be in the zone.” Smith also said in his declaration that “[g]iven the nature

and extent of the protests in the area and my assignment, I decided not to

pursue Mr. Skove to detain him or arrest him for violating [Order No. 3]

and ignoring my directives.” Viewing the evidence in the light favorable

to Smith, we conclude that there are genuine issues of material fact

whether the circumstances at the time and place of the seizure showed suf-

ficient exigency to justify warrantless seizure. See, e.g., McConnery, 728

F.2d at 1199. The factual issue of exigency must be presented to a trier

of fact.

6020 MENOTTI v. CITY OF SEATTLE

E

We reverse the district court’s grant of summary judgment

to the City on Menotti’s Fourth Amendment and false arrest

claims and remand those claims for trial. We also reverse the

district court’s grant of qualified immunity to Officer Smith,

and remand for trial the issue of Smith’s liability for the sei-

zure of Skove’s sign. We affirm the district court’s dismissal

of all other claims asserted by Menotti, Sellman, Stedl, and

Skove.

V

Justice Stewart once observed for the Supreme Court, in no

uncertain terms, that “[t]he guarantees of the First Amend-

ment have never meant that people who want to propagandize

protests or views have a constitutional right to do so whenever

and however and wherever they please.” Greer v. Spock, 424

U.S. 828, 836 (1976) (quoting Adderley v. Florida, 385 U.S.

39, 47-48 (1966)).75 When a city is charged with the critically

important responsibility of hosting a convention of world

leaders, a setting in which the eyes of the world are on the city

and our country, and our nation’s reputation is at stake as

well, the city must have the power to maintain civic order in

a responsible way that does not unduly interfere with the gath-

ered convention or with civil liberties. In balancing desired

freedom of expression and the need for civic order, to accom-

modate both of these essential values, a measure of discretion

necessarily must be permitted to a city, on the scene with

direct knowledge, to fashion remedies to restore order once

lost. It may be that a violent subset of protestors who disrupt

civic order will by their actions impair the scope and manner

of how law-abiding protestors are able to present their views.

75

Justice Stewart’s quoted observation was made in the context of the

Court’s decision restricting protest on a military base. The same idea,

however, animates the permissibility of reasonable time, place, and man-

ner restrictions on protest in a public forum.

MENOTTI v. CITY OF SEATTLE 6021

Given the breakdown of public order that confronted Seattle,

we decline to hold unconstitutional the City’s implementation

of procedures necessary to restore safety and security to its

residents and to the visiting world leaders. As occurred in this

case, a city hosting an important meeting may be besieged

with tens of thousands of persons, some with lawful intentions

in the best tradition of civic protest, but others with violent

and disruptive aims. When violent protestors substantially dis-

rupt civic order, there must necessarily be consequences for

all if a city is to satisfy its superordinate duty to provide safety

and security. While respecting the liberty of protestors, a city

must be permitted to act reasonably, within the bounds of the

Constitution, to fulfill its responsibilities of providing physi-

cal security and the maintenance of order that is required for

all of a city’s residents and visitors.

We reject the facial challenges to Order No. 3

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