SEATTLE (CN) — Three years ago, officers of the Seattle Police Department arrested four young protesters for writing political messages in chalk in front of the department’s East Precinct. On Friday, the same ordinance behind those arrests will go back into place, after a Ninth Circuit panel reversed the protesters’ preliminary injunction from last year.
“The people of Seattle won an important victory today when the Ninth Circuit upheld our city’s right to enforce our laws against graffiti property destruction,” said Seattle city attorney Ann Davison in a statement.
“Graffiti is a massive problem for our city, costing taxpayers, businesses and residents millions of dollars while creating widespread visual blight. We must have as many tools as possible to protect neighbors and residents impacted by graffiti.”
Seattle’s municipal ordinance 12A.08.020 broadly criminalizes property crimes like graffiti, which includes any form of intentional writing, painting, drawing or marking on a property without the property owner’s permission.
U.S. Senior District Judge Marsha J. Penchman granted a preliminary injunction against an amended version of the ordinance last June, deciding that four protesters suing Seattle in federal court would likely succeed in their overbreadth and facial vagueness challenges against the ordinance’s ban on graffiti.
In their January 2023 lawsuit, Seattle residents Derek Tucson, Robin Snyder, Monsieree De Castro and Erik Moya-Delgado claim the city and three Seattle police officers violated their Constitutional rights to free speech, due process and freedom from unreasonable search and seizure without probable cause. The fourth count, a Monell claim, accuses the city of enforcing the ordinance in retaliation for protected speech while employing viewpoint discrimination.
The city’s amendments to the ordinance arrived two months after the plaintiffs sued and now require prosecutors to prove beyond a reasonable doubt that someone accused of property damage had not received permission from a property owner to be convicted of a gross misdemeanor.
The events leading up to the lawsuit all stem from the evening of Jan. 1, 2021, when Tucson used a piece of charcoal to write “peaceful protest” on a concrete wall that the police department placed on the city sidewalk to barricade its east precinct building.
“Although the writing caused no damage to the wall, and would wash off in the rain, defendants arrested plaintiff Tucson for the sole reason that he wrote this political message,” the plaintiffs wrote in the complaint.
After witnessing Tucson’s arrest, other people who were angered by the response began writing on the wall with charcoal and children’s sidewalk chalk. The messages — all varying from “Black Lives Matter” to “FTP,” meaning “fuck the police” — soon led to the arrest of the three other plaintiffs.
“Prosecutors did not charge plaintiffs within the two-year statute of limitations for SMC 12A.08.020 or any related offense presumably because plaintiffs’ only true crime was criticizing the defendants in the public forum,” the plaintiffs wrote, adding that the city enforced the ordinance selectively and with retaliatory animus because it does not apply the law to people expressing pro-government or pro-police sentiments in the same manner.
In granting the a preliminary injunction, Judge Penchman indicated the city’s ordinance for graffiti may violate the First and Fourteenth Amendments by being vague and overbroad.
A judge panel from the Ninth Circuit disagreed on Friday, explaining that the federal judge never considered how the ordinance’s applications would not implicate protected speech.
“The district court’s statement that ‘the purported need to prevent property destruction could be accomplished without a provision criminalizing speech in public areas without permission,’ perfectly captures its error with respect to the overbreadth doctrine,” U.S. Circuit Judge Milan D. Smith Jr. wrote in the opinion.
The George W. Bush appointee explained that just because the ordinance likely violates the First Amendment by banning chalk messages on public sidewalks, it doesn’t mean the whole law should be invalidated. The overbreadth doctrine cannot be casually deployed either, the judge added.
“Contrary to what the district court suggested in its order granting the preliminary injunction, the overbreadth doctrine does not license the federal courts to strike down laws in their entirety just because the legislature could have more carefully crafted the statutory language to avoid some unconstitutional applications,” Smith wrote.
The panel held that Penchman erred in applying the facial vagueness doctrine, explaining there had been no analysis of how the ordinance is not vague — only speculations about potential vagueness in “hypothetical and fanciful situations” absent from the court record.
The appellate judges also agreed that the city doesn’t need to define “damage” when it doesn’t appear in the ordinance and that there’s nothing facially vague about allowing the law to delegate enforcement to police without guidance or boundaries.
“The mere fact that the city and its officers have discretion to enforce the local ordinance in some circumstances and not others is not a sufficient basis for concluding that the local ordinance is wholly vague such that it can never be enforced,” Smith writes. “Accordingly, we reverse the district court’s order granting plaintiffs a preliminary injunction on their Fourteenth Amendment facial vagueness claim.”
U.S. Circuit Judges Richard R. Clifton, a George W. Bush appointee, and U.S. Circuit Judge Eugene E. Siler, appointed by George H. W. Bush, joined Smith on the panel.
Attorneys for plaintiffs are Neil Fox of Neil Fox Law and Braden Pence and Nathaniel Flack of MacDonald Hoague & Bayless in Seattle. The attorneys did not immediately respond to a request for comment or an interview.
Follow @alannamayhampdx
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