Appendix — Edwards v. City of Santa Barbara

la

APPENDIX A

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT.

Nos. 95-56790, 96-56262 and 96-56558.

Vickie L. EDWARDS: Kathleen McCaulley,

Plaintiffs- Appellees.

V.

CITY OF SANTA BARBARA,

Defendant-Appellant.

Vickie L. EDWARDS; Kathleen McCaulley,

Plaintiffs-Appellees.

v.

CITY OF SANTA BARBARA,

Defendant-Appellant.

Vickie L. EDWARDS; Kathleen McCaulley,

Plaintiffs-Appellees.

, -

CITY OF SANTA BARBARA,

Defendant-Appellant.

Argued and Submitted Nov. 3, 1997.

Decided Aug. 11, 1998.

District of California, Richard A. Gadbois, a, 3., 7

F.Supp. 1379. preliminarily enjoined Ordinance’s enforce-

ment. City appealed. The Court of Appeals vacated and

remanded. The District Court, Ronald S. w. Lew, J., en-

2a

joined enforcement of three of four challenged provisions

and awarded counselors fees and costs. City appealed. The

Court of Appeals held that: (1) city’s interests were suffi-

cient, under First Amendment, to sustain ordinance; (2)

ordinance provisions creating fixed buffer zone within eight

feet of entrances to health care facilities and places of wor-

ship was narrowly tailored to serve city’s interests and left

open ample alternative means of communication; and (3)

provisions creating floating buffer zone within 100 feet of

facilities and places of worship were not narrowly tailored to

serve city’s interests.

Affirmed in part, reversed in part, and attorney fees and

costs vacated.

Appeal from the United States District Court for the Central District

of California; Richard A. Gadbois, Jr., District Judge, Presiding.

D.C. No. CV-94-02243-RG-JRx.

Appeals from the United States District Court for the Central District

of California; Ronald S. W. Lew, District Judge, Presiding.

D.C. No. CV-94-02243-RSWL.

Before: BROWNING, BRUNETTI and FERNANDEZ,

Circuit Judges.

PER CURIAM:

Vickie Edwards and Kathleen McCaulley, two ‘‘sidewalk

counselors,’’ challenged an ordinance of the City of Santa

Barbara, California limiting demonstration activity near

health care facilities and places of worship, passed after a

protracted history of harassment by anti-abortion protestors.

The ordinance prohibits demonstration within eight feet of

entrances to medical facilities or places of worship, and

permits a patient or worshiper to create an eight foot ‘‘float-

ing buffer zone’’ or ‘‘bubble’’ within one hundred feet of

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such entrances by asking the demonstrator to withdraw.! The

district court preliminarily enjoined enforcement of the

ordinance. We remanded for reconsideration in light of

Sabelko v. City of Phoenix, 68 F.3d 1169 (9th Cir. 1995).

On remand, the district court enjoined three of the four

challenged provisions, upholding only the floating buffer

zone within one hundred feet of a health care facility. The

plaintiffs successfully moved for supplemental fees and

costs. The City appealed the grant of the injunction and the

award of fees and costs.

In the interim, the Supreme Court vacated our decision in

Sabelko and remanded in light of Schenck v. Pro-Choice

Network of Western New York, 519 U-S. 357, 117 S.Ct.

855, 137 L.Ed.2d 1 (1997). On remand, we held the

Phoenix floating buffer zone provision unconstitutional and

enjoined its enforcement. See Sabelko v. City of Phoenix,

120 F.3d 161, 165 (9th Cir. 1997).

Guided by Schenck and Sabelko, we affirm the district

court’s preliminary injunction enjoining enforcement of the

floating buffer zone provision. However, we conclude the

fixed driveway provisions are a reasonable time, place, and

manner restriction, and vacate the preliminary injunction of

their enforcement.

I.

Ordinance 4812 prohibits all demonstration activity within

a specified distance of health care facilities and places of

' See Section 9.99.030 (‘‘the driveway provision’’ or ‘‘fixed buffer

zone’’ prohibiting demonstration within eight feet of entrances to medi-

cal clinics or places of worship); see also Section 9.99.020 (the

““bubble’’ or ‘‘floating buffer zone’’ permits people within one hundred

feet of such entrances to request that anyone who approaches them

“‘withdraw to a distance of... eight feet’’).

4a

worship without regard to the message conveyed.” Because it

is content neutral, the ordinance passes constitutional muster

if it is ‘‘narrowly tailored to serve a significant government

interest and . . . leave[s] open ample alternative channels of

communication.”’ Frisby v. Schultz, 487 U.S. 474, 482,

108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (internal quota-

tions omitted). Although the regulation ‘‘must be *1216

narrowly tailored to serve the government’s legitimate,

content-neutral interests[,] . . . it need not be the least re-

strictive or least intrusive means of doing so.’’ Ward v.

Rock Against Racism, 491 U.S. 781, 798-99, 109 S.Ct.

2746, 105 L.Ed.2d 661 (1989).4

2 It is undisputed that the ordinance prohibits speech in a traditional

public forum. See, e.g., Frisby v. Schultz, 487 U.S. 474, 479-82, 108

S.Ct. 2495, 101 L.Ed.2d 420 (1988).

3 Plaintiffs argue the ordinance was designed to suppress their view-

point. See, e.g., Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (local ordinance

struck down because of viewpoint bias reflected in the legislative

history). However, an ordinance may be motivated by a concern about

the effects of speech without running afoul of the First amendment. See

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-49, 106

S.Ct. 925, 89 L.Ed.2d 29 (1986). The fact that a majority of those

prosecuted under the ordinance have been anti-abortion protesters does

not permit an automatic inference of discriminatory purpose in its adop-

tion.

The plaintiffs also argue that the ordinance has been selectively en-

forced against them, citing the deposition responses of two police offi-

cers to hypothetical questions. This argument lacks force, given the

small number of citations issued by these two officers and the fact that

thirty-one other officers issued the remaining citations. Moreover, the

training video clearly shows the Deputy City Attorney explaining that all

demonstration activity is prohibited regardless of the ‘‘side.’’

* See also Madsen v. Women’s Health Center, Inc., 512 U.S. 753,

764- 65, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (announcing a newly

heightened standard for content-neutral injunctions, but restating the

Ward test for legislative enactments of general applicability).

, ee

Sa

A single legitimate government interest may be sufficient

tO sustain a content-neutral regulation. See, e.g., Heffron v.

Int’! Soc’y for Krishna Consciousness, Inc., 452 U.S. 640,

650 n. 13, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (declin-

ing to consider second and third interests advanced by the

State to justify a time, place, and manner restriction because

the first adequately supported the regulation). The City

contends three valid interests are served by the ordinance:

(1) protecting persons seeking medical services or engaging

in worship from harassment or intimidation; (2) ensuring

access to medical facilities and Places of worship; and (3)

ensuring traffic safety. The Supreme Court has held these

interests sufficient. See Schenck, 117 S.Ct. at 866 (govern-

ment interests in ‘“ensuring public Safety and order, promot-

ing the free flow of traffic on streets and sidewalks, protect-

ing property rights, and protecting a woman’s freedom to

seek pregnancy-related services’’ are “‘certainly significant

enough to justify an appropriately tailored injunction to

secure unimpeded physical access to the clinics’’). The City

must also demonstrate that the ordinance is ‘‘narrowly tai-

lored’’ to serve these valid interests and “‘leave[s] open

ample alternative channels of communication.’’ Ward, 49]

U.S. at 791, 109 S.Ct. 2746.

I.

In district court, the plaintiffs-appellees successfully

challenged the driveway provisions creating a fixed buffer

zone within eight feet of the entrances to medical facilities

and places of worship, as well as the floating buffer zone in

connection with places of worship.»

* The district court upheld the floating buffer zone within one hundred

feet of a health care facility and the plaintiffs have not appealed that

decision. On October 6, 1997, in light of our decision upon remand from

the Supreme Court in Sabelko, the district court granted plaintiffs’

renewed motion for Preliminary injunction barring enforcement of the

floating buffer zone as applied to health care facilities.

6a

1. Driveway provisions.

Recent Supreme Court precedent has upheld much larger

fixed buffer zones using the more rigorous standard for

content-neutral injunctions. See Madsen, 512 U.S> at 770,

114 S.Ct. 2516; Schenck, 117 S.Ct. at 868. Against this

background, the driveway provision does not sweep too

broadly. A distance of eight feet is not too great to limit

most forms of protest, and conversation is easily possible at

that distance. The provision is narrowly tailored to the

City’s objectives: it ensures access to health care facilities by

providing a clear, easily enforced zone of protection for the

driveway entrances; facilitates the free flow of traffic by

preventing protesters from blocking entrances; and furthers

the City’s interest in public safety and prevents direct ‘‘face

to face’’ confrontations that could escalate into violence by

physically separating demonstrators from persons entering

the driveway areas. See Schenck, 117 S.Ct. at 866.

Although the driveway provision in connection with

places of worship is unrelated *1217 to the City’s interest in

protecting patients in need of medical care, it is narrowly

tailored to the City’s interest in ensuring access to religious

worship. It permits ample alternative avenues of communica-

tion, by placing no limit on speech or expressive activity

outside a narrow zone.

2. Floating buffer zone.

With respect to the floating buffer zone, our decision in

Sabelko, invalidating an eight-foot buffer zone on the

grounds that it was not narrowly tailored, is dispositive.

Like the provision challenged here, the invalidated buffer

zone could be invoked within one hundred feet of a clinic.

Unlike the ordinance challenged in Sabelko, Santa Barbara’s

ordinance has a severability clause. We, therefore, need not

invalidate the entire ordinance. See Sabelko, 120 F.3d at

165.

7a

Il.

On appeal, the plaintiffs have prevailed on only one of

their challenges to the ordinance. We therefore vacate the

Original award and the supplemental award of attorneys’ fees

and costs and remand for redetermination of the amount

due.* The district court Should arrive at a reasonable fee

award by identifying the specific hours expended on the

floating buffer zone provision or by reducing the overall

award to reflect the plaintiffs’ limited success. See Texas

State Teachers Ass’n v. Garland Indep. School Dist., 489

U.S. 782, 791-92. 109 S.Ct. 1486, 103 L.Ed.2d 866

(1989).

Each party shall bear its OWN Costs.

REVERSED IN PART; AFFIRMED IN PART:

ATTORNEYS’ FEES AND COSTS VACATED

® The district court Clearly stated the applicable standard for evaluating

Section 1988 awards in its October 24, 1995 order, granting the plain-

tiffs’ motion for attommeys’ fees. The supplemental award of fees and

costs was also within the discretion of the district court. In each instance,

the request for fees was supported by billing statements.

8a

APPENDIX B

{stamp—FILED; OCT - 6 1998; CATHY A. CATTERSON, CLERK;

U.S. COURT OF APPEALS]

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 95-56790

D.C. No. CV-94-02243-RG-JRx

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

V.

CITY OF SANTA BARBARA,

Defendant- Appellant.

NOW LEGAL DEFENSE AND EDUCATION FUND, etc.

Amici Curiae.

No. 95-56262

D.C. No. CV-94-02243-RSWL

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

v.

CITY OF SANTA BARBARA,

Defendant-Appellant.

NOW LEGAL DEFENSE AND EDUCATION FUND,

CALIFORNIA MEDICAL ASSOCIATION; CITY

AND COUNTY OF SAN FRANCISCO,

Amici Curiae.

9a

No. 96-56558

D.C. No. CV-94-02243-RSWL

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY

Plaintiffs-Appe

V.

CITY OF SANTA BARBARA.

- Defendant-Appe

NOW LEGAL DEFENSE AND EDUCATION FUNI

CALIFORNIA MEDICAL ASSOCIATION: CITY

AND COUNTY OF SAN FRANCISCO

Amic!

ORDER

Before: BROWNING, BRUNETTI and FERN ANDE:

Circuit Judges

The panel has voted to deny the petition for reheari:

to reject the suggestion for rehearing en banc

The full court has been advised of the Suggestion for ane

banc rehearing, and no judge of the court has requested a

vote on the suggestion for rehearing en banc. Fed. R. Apy

P. 359(b).

The petition for rehearing is denied and the suggestion :

rehearing en banc is rejected.

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APPENDIX C

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT.

No. 94-15495.

Katherine SABELKO and Nancy Barto,

Plaintiffs-Appellees,

V.

The CITY OF PHOENIX; Paul Johnson; Thelda Williams;

Frances Emma Barwood; Skip Rimsza; Craig Tribken; John

Nelson; Kathy Dubs; Salomon F. Leija; Calvin C. Goode,

Defendants-Appellants.

July 14, 1997.

As Amended Aug. i, 1997.

Antiabortion ‘sidewalk counselors’’ brought action chal-

lenging, on First Amendment grounds, ordinance that

imposed ‘‘floating buffer zone’’ restriction upon demon-

strators outside of health care facilities. The United States

District Court for the District of Arizona, Stephen M.

McNamee, J., 846 F.Supp. 810, issued injunction against

enforcement, and city appealed. After the Court of Appeals

reversed, the United States Supreme Court vacated and

remanded for further consideration. Upon remand, the Court

of Appeals, Beezer, Circuit Judge, held that: (1) ordinance

was content-neutral; (2) ordinance was not narrowly tai-

lored, and thus violated First Amendment’s free speech

clause; and (3) Court of Appeals lacked authority to remedy

ordinance.

Affirmed.

On Remand from the United States Supreme Court, D.C.

No. CV-93-02229-SMM.

lla

Before: SCHROEDER, BEEZER and THOMPSON.

Circuit Judges.

ORDER

The opinion filed on October 19, 1995 js hereby with-

drawn.

OPINION

BEEZER, Circuit Judge.

We reconsider whether a City of Phoenix ordinance which

imposes a ‘‘floating buffer zone’’ restriction upon

demonstrators outside of health care facilities violates the

First Amendment. We affirm the district court’s decision

declaring the Phoenix ordinance unconstitutional and enjoin-

ing its enforcement.

I

In 1993, the City of Phoenix, Arizona enacted an

ordinance limiting demonstration activity near health care

facilities due to concern about harassment outside such facili-

ties. The ordinance makes it unlawful ‘‘for any person, in

the course of demonstration activity *163 within the access

area of a health care facility, to fail to withdraw upon a

clearly communicated request to do so to a distance of a

least eight (8) feet away from any person who has made the

request.’’ !

' Specifically, the ordinance provides:

ORDINANCE NO. G3705

AN ORDINANCE AMENDING CHAPTER 23, ARTICLE 1 OF THE

PHOENIX CITY CODE, BY ADDING SECTION 23-10.1, RELAT-

ING TO UNIMPEDED ACCESS TO HEALTH CARE FACILITIES;

AND DECLARING AN EMERGENCY.

[Footnote 1 continued on following page]

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Plaintiffs-Appellees Katherine Sabelko and Nancy Barto

refer to themselves as ‘‘sidewalk counselors’’ who engage in

demonstration activity outside abortion clinics in Phoenix.

The plaintiffs filed a 42 U.S.C. § 1983 action in district

court seeking declaratory and injunctive relief against the

City of Phoenix on the grounds that the ordinance as applied

WHEREAS, unimpeded access to health care services is critically and

uniquely important to the public health, safety and welfare; and

WHEREAS, persons attempting to access health care facilities are sub-

ject to harassing or intimidating activity tending to impede their access to

those facilities by demonstrators approaching within extremely close

proximity; and

WHEREAS, such activity near health care facilities creates a ‘‘captive

audience’ situation where persons seeking services cannot avoid the area

outside the facilities, and their physical and emotional conditions may

make them especially vulnerable to the adverse physiological and emo-

tional effects of such harassing or intimidating activities directed at them

from extremely close proximity; and WHEREAS, such activity in ex-

tremely close proximity tends to undermine a person’s right to privacy

and interference with a person’s right to seek legitimate health care

treatment and counseling; and

WHEREAS, this ordinance does not preclude all protesting, picketing,

demonstrating, leafleting or educational activities near a health care facil-

ity but is a necessary time, place and manner restriction intended to

reconcile and protect the First Amendment rights of demonstrators and

the rights of persons using health care facilities to be free from direct

confrontation, hindrance, harassment, intimidation and harm; and

WHEREAS, existing law does not adequately protect such access to

health care facilities; NOW THEREFORE,

BE IT ORDAINED by the Council of the City of Phoenix as follows:

SECTION 1. Chapter 23, Article 1, Phoenix City Code, is amended by

adding section 23-10.1 to read:

Sec. 23-10.1 IMPEDING ACCESS TO HEALTH CARE FACILITIES.

A. It is unlawful for any person, in the course of demonstration activity

within the access area of a health care facility, to fail to withdraw upon a

[Footnore 1 continued on following page]

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violated the free speech provisions of the First Amendment.

In a published decision, the district court declared the ordi-

nance unconstitutional and issued an injunction. See Sabelko

v. City of Phoenix, 846 F.Supp. 810 (D. Ariz. 1994). We

reversed the district court. Sabelko v. City of Phoenix, 68

F.3d 1169 (9th Cir.1995), vacated, U.S. __, 117 S.Ct.

1077, 137 L.Ed.2d 212 (1997); but see Sabelko, 68 F.3d at

1173 (Beezer, J. dissenting). The Supreme Court vacated

our judgment and remanded ‘‘for further consideration in

light of Schenck v. Pro-Choice Network of Western New

clearly communicated request to do so to a distance of at least eight (8)

feet away from any person who has made the request.

B. For purposes of this section:

1.“‘Across area’’ means any portion of a public street or other public

place or any place open to the public within one hundred (100) feet of an

exterior wall or entryway of a health care facility.

2. ‘‘Demonstration activity’ includes but is not limited to protesting,

picketing, distributing literature, attempting to impede access, or engag-

ing in oral protest, education or counseling activities.

3. ‘“Health care facility’’ means any hospital, clinic, office, building or

other place used to provide medical, psychological, nursing or other

health care services, including family planning counseling and pregnan-

cy-related services.

C. For purposes of this section, distance shall be measured from that part

of the closest demonstrator’s body that is nearest to the closest part of the

requesting person’s body. The term ‘‘body’’ includes any natural or

artificial extension of a person’s body including but not limited to an

outstretched arm or a hand-held sign.

SECTION 2. WHEREAS, the immediate operation of the provisions of

this ordinance is necessary for the preservation of the public peace,

health and safety, an EMERGENCY is hereby declared to exist, and this

ordinance shall be in full force and effect from and after its passage by

the Council as required by the City Charter and is hereby exempted from

the referendum clause of said Charter.

PASSED by the Council of the City of Phoenix this 17th day of Novem-

ber, 1993.

l4a

York, [ U.S. __, 117 S.Ct. 855, 137 L.Ed.2d 1

(1997)].”* Sabelko v. City of Phoenix, U.S. _, 117

S.Ct. 1077, 137 L.Ed.2d 212 (1997).

*164 I

We first determine whether Phoenix ordinance No. G3705

is content- neutral. We inquire whether ‘‘the government has

adopted a regulation of speech ‘without reference to the

content of the regulated speech.” ’’ Madsen v. Women’s

Health Center, Inc., 512 U.S. 753, 763, 114 S.Ct. 2516,

2523, 129 L.Ed.2d 593 (1994) (quoting Ward v. Rock

Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754,

105 L.Ed.2d 661 (1989)). In Madsen, the Supreme Court

considered an injunction prohibiting demonstrators from

‘‘congregating, picketing, patrolling, demonstrating or enter-

ing’’ within 36 feet of a health care clinic. Id. at 759, 114

S.Ct. at 2522. The Court held that ‘‘none of the restrictions

imposed by the court were directed at the contents of peti-

tioner’s message.”’ Id. at 763, 114 S.Ct. at 2523.

The Phoenix ordinance regulates all demonstration activity

within 100 feet of a clinic. The term ‘‘demonstration ac-

tivity’’ is defined as including, but is not limited to, ‘‘pro-

testing, picketing, distributing literature, attempting to

impede access, or engaging in oral protest, education or

counseling activities.’’ Like the injunction in Madsen, the

Phoenix ordinance does not refer to the content of the speech

that it regulates. It is content-neutral.

Ii

We next determine whether the content-neutral, time,

place and manner restrictions in the Phoenix ordinance are

““narrowly tailored to serve a significant government inter-

est, and leave[s] open ample alternative channels of commu-

nication.”’ Ward, 491 U.S. at 791, 109 S.Ct. at 2753; see

Madsen, 512 U.S. at 764, 114 S.Ct. at 2524.

1Sa

A

The Supreme Court has held that the government has a

substantial interest ‘‘in protecting a woman’s freedom to

seek lawful medical or counseling services in connection

with her pregnancy.’’ Madsen, 512 U:S. at 767, 114 S.Ct.

at 2526; see Schenck, __ US. at, 117 S.Ct. at 866.

The Court has also indicated that a State has an interest in

protecting medical privacy. The Court observed that targeted

picketing of a clinic could threaten both the psychological

and the physical well-being of a patient held ‘“captive’’ by

medical circumstance. Madsen, 512 U.S. at 768, 114 S.Ct.

at 2526 (comparing the government’s strong interest in

residential privacy, acknowledged in Frisby v. Schultz, 487

U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), with

medical privacy).

The Phoenix ordinance serves such interests. On its face

the ordinance seeks to Protect the users of the clinic from

‘“harassing or intimidating activity tending to impede .

access to those facilities’’ and the ‘adverse physiological

and emotional effects’ of harassment. These substantial

interests in allowing access, eliminating harassment and

preventing intimidating activity will support a narrowly

tailored ordinance.

B

The Schenck decision guides our review in determining

whether the Phoenix ordinance jis Narrowly tailored. In that

case, the Supreme Court considered, inter alia, floating

buffer zones similar to the one imposed by the Phoenix

ordinance. The injunction at issue in Schenck banned

demonstration within fifteen feet of any person seeking to

enter or leave a health care clinic. ps VS... 117

S.Ct. at 862. The injunction specified. however, that two

persons could enter the floating buffer zones to attempt

16a

‘*sidewalk counseling’’ unless they were asked to cease and

desist. Id.

The Court struck down the floating buffer zones because

‘‘they burden more speech than is necessary to serve the

relevant government imerests.’’* Id. at - » AEF SA.

at 866-67. The Court observed that *165 floating buffer

zones prevent leafleting and communication at a normal

conversationa! distance, both ‘‘classic forms of speech that

lie at the heart of the First Amendment.’’ Id. at -

118 S.Ct. at 867. Because this broad prohibition * **floated’’

the court determined that demonstrators would have diffi-

culty determining how to comply with the injunction:

Protesters could presumably walk 15 feet behind the

individual, or 15 feet in front of the individual while

walking backwards. But they are then faced with the

problem of watching out for other individuals entering

or leaving the clinic. . . . [A]ttempts to stand 15 feet

from someone entering or leaving a clinic and to

communicate a message-certainly protected on the face

of the injunction-will be hazardous if one wishes to

remain in compliance with the injunction.

Id. The Court concluded that this lack of certainty about

how to comply with the injunction created a substantial risk

that more speech would be burdened than the injunction

prohibited. Because other means might exist which would

protect governmental interests and provide certainty regard-

ing compliance, the Court held that the floating buffer zones

> In Madsen, the Supreme Court stated that injunctions, as compared

to content-natural, generally applicable statutes, require a ‘‘more strin-

gent application of general First Amendment principles.’ Madsen, 512

U.S. at 765, 114 S.Ct. at 2524. The standard for injunctions is whether

the challenged provisions burden no more speech than necessary to a

serve a significant government interest. Id. at 765-67, 114 S.Ct. at 2525:

Schenck, U.S.at_ -__,117S.Ct. at 866-67.

17a

burdened more speech than was necessary. Id. at__—,_:117

S.Ct. at 868.

The Phoenix ordinance suffers the same defects as the

injunction in Schenck. It contains a broad prohibition on

speech with which it is difficult to comply without risking a

violation of the ordinance. An individual within the access

area to a clinic can invoke the eight-foot floating buffer

zone, effectively preventing handbilling and normal

conversation. Demonstrators who attempt communication

with an individual must constantly monitor themselves to

ensure that they don’t encroach upon that individuals’s or

another individual’s floating buffer zone. Further. the

demonstrators are faced with the problem of determining

which people within the access area have invoked the protec-

tion offered by the buffer zone.

An ordinance is narrowly tailored ‘‘if it targets and elimi-

nates no more than the exact source of the ‘evil’ it seeks to

remedy.’’ Frisby, 487 U.S. at 485, 108 S.Ct. at 2503. As in

Schenck, a Phoenix demonstrator would encounter difficulty

in knowing how to remain compliant. This uncertainty

concerning compliance establishes a substantial risk that

more speech will be eliminated than the ordinance itself

prohibits. As such, the Phoenix ordinance lacks the narrow

tailoring necessary to survive our scrutiny .?

> Because we find that the Phoenix ordinance is not narrowly tailored,

we need not decide whether it ““leave(s] open ample alternative channels

of communication.’’ Ward, 491 U.S. at 791, 109 S.Ct. at 2753.

18a

IV

We do not have the power to remedy the Phoenix

ordinance. The ordinance contains no severability clause nor

can the remainder of the ordinance function independently of

the constitutionally infirm floating buffer provision. See

Desert Outdoor advertising v. City of Moreno Valley, 103

F.3d 814, 821 (9th Cir.1996) (‘‘whether partial invalidation

is appropriate depends on the intent of the City in passing

the ordinance and whether the balance of the ordinance can

function independently.’’ Id. (quotation omitted)). Indeed,

the floating buffer provision is the only restriction on speech

in the ordinance. Moreover, ‘‘[c]onsistent with other

constitutional norms, legislatures may draw lines which

appear arbitrary without the necessity of offering a

justification. But courts may not. We must justify the lines

we draw.’’ Planned Parenthood v. Casey, 505 U.S. 833,

870, 112 S.Ct. 2791, 2817, 120 L.Ed.2d 674 (1992)

(opinion of O’Connor, Kennedy and Souter, JJ.).

Vv

The Phoenix Ordinance impermissibly encroaches on First

Amendment freedoms and its enforcement should be

enjoined. We affirm the district court’s judgment.

AFFIRMED.

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APPENDIX D

Chapter 9.99

ACCESS TO HEALTH CARE FACILITIES AND

PLACES OF WORSHIP

Sections:

9.99.010 Definitions. 9.99.030 Access to Driveway Areas.

9.99.020 Impeding Access Prohibited. 9.99.040 Private Right of Action.

9.99.010

As used in this Chapter, the following terms and phrases

shall have the indicated meanings:

A. ACCESS AREA. Any portion of a public street or

other public place or any place open to the public within one

hundred (100) feet of the premises of a health care facility or

place of worship.

B. HEALTH CARE FACILITY. Any medical or health

facility, hospital or clinic within the City which is licensed

under State law or any building, office or other place within

the City regularly used by any health care provider licensed

under State law to provide medical, nursing, or health care

or advice to patients. A health care facility includes but is

not limited to any buildings, appurtenances and grounds,

entrances, parking facilities, and driveways.

C. PLACE OF WORSHIP. A place of worship includes

but is not limited to any buildings, appurtenances and

grounds, entrances, parking facilities, and driveways where

persons gather to worship when the same are used solely and

exclusively for religious worship.

D. DEMONSTRATION ACTIVITY. All expressive and

Symbolic conduct, whether active or passive, which shall

include, but not be limited to, protesting, picketing, distrib-

uting literature, and engaging in oral or silent protest,

education or counselling activities.

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E. DRIVEWAY AREA. That portion of a street right-of-

way (including a sidewalk) generally improved for the

purposes of providing vehicular access to adjacent private

property. At the request of a health care facility or place of

worship, the City of Santa Barbara will indicate (such as

through the use of painted lines) the perimeter boundaries of

the driveway area. (Ord. 4812, 1993.)

9.99.020 Impeding Access Prohibited.

A. DEMONSTRATION ACTIVITY - OBLIGATION TO

WITHDRAW. No person, in the course of demonstration

activity within the access area of a health care facility or

place of worship, acting alone or in concert with others,

shall impede or hamper the free access to or departure from

any health care facility or place of-worship by failing to

withdraw immediately to a distance of at least eight (8) feet

away from any person who has requested such withdrawal.

‘‘Impede’’ or ‘‘Hamper’’ means to obstruct, hinder or

delay.

B. WITHDRAWAL. For purposes of this Section, with-

drawal may be requested by a person verbally, or by carry-

ing Or wearing a visible sign clearly indicating such with-

drawal request. Statements by a person, or signs carried or

worn by a person displaying words or symbols such as or

similar in effect to “‘stop,’’ ‘‘stop it,’’ ‘‘withdraw,’’ ‘‘back

off,’’ ‘“‘get away,’’ or “‘leave me alone’”’ shall be sufficient

to constitute to request to withdraw under this Section.

Failure to comply immediately with any such request shall

constitute a violation of this Section. Mere statements of

Opinion or disagreement made in the absence of a request to

withdraw shall not be construed to be a request to withdraw

under this Section.

C. DISTANCE. Distance under this Section shall be

measured from that part of the closest demonstrator’s body

that is nearest to the closest part of the requesting person’s

body. For purposes of the preceding sentence, the term

2la

‘““body’’ shall include any natural or artificial extension

thereof, including, but not limited to, an outstretched arm or

a handheld sign. (Ord. 4812, 1993.)

9.99.030 Access to Driveway Areas.

No person shall conduct any demonstration activity within

the driveway area or within eight (8) feet of the driveway

area of a health care facility or place of worship, provided

however that it shall be lawful for a person to use a public

sidewalk or street right-of-way adjacent to a health care

facility or place of worship in order to traverse a driveway

area. No person shall impede access to a driveway entrance

of a health care facility or place of worship by any conduct

which delays or impedes the flow of pedestrian or vehicular

traffic in or out of such facility. (Ord. 4812, 1993.)

9.99.040 Private Right of Action

A. REMEDIES. Any person who is seeking or intends to

seek access to a health care facility or place of worship and

is aggrieved by an act prohibited by this Chapter may bring

an action for damages, injunctive and/or declaratory relief,

aS appropriate, in a court of competent jurisdiction against

any person who has violated, has conspired to violate or

proposes to violate its provisions.

B. ATTORNEY FEES - CIVIL PENALTIES. Any

person who prevails in such an action shall be entitled to

recover from the violator those damages, costs, attorneys’

fees and such other relief as determined by the court. In

addition to all other damages, the court may award to the

aggrieved person a civil penalty of up to One Thousand

Dollars ($1,000) for each violation.

C. REMEDIES NOT EXCLUSIVE. The remedies pro-

vided by this Section are in addition to any other legal or

equitable remedies the aggrieved person may have and are

not intended to be exclusive. (Ord. 4812, 1993)