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Ninth Circuit:
San Jose’s Nuisance Law Survives Constitutional Challenge
By Kimber Cooley, Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday, over a dissent, that sections of the San Jose Municipal Code allowing the chief of police to deny, revoke or suspend the license of a public entertainment business if it causes a public nuisance are not facially invalid under the First Amendment as they do not give officials unbridled discretion.
In so ruling, it rejected the challenge by a nightclub the license of which was suspended following a shooting outside its premises.
The panel also held that the nightclub failed to state a procedural due process claim arising from the city declining to turn over video evidence of the shooting before the administrative hearing because that the licensing scheme still provided the club with notice, an opportunity to be heard, the ability to present and respond to evidence, and an appeals procedure.
The opinion, authored by Circuit Judge Jacqueline Nguyen, affirms the order by then-District Court Judge Lucy H. Koh of the Northern District of California, now a Ninth Circuit judge, granting judgment in favor of the city after dismissing the claims and granting summary judgment.
Senior District Court Judge Timothy M. Burgess of the District of Alaska, sitting by designation, joined in the opinion and Circuit Judge Daniel P. Collins dissented.
Event Promoter
Appealing the dismissal was Diamond S.J. Enterprise, operator of the SJ Live nightclub. On May 27, 2017, SJ Live scheduled a live show through event promoter Daniel Embay.
After learning that Embay had booked advance table reservations at the club without permission—causing tables to be double-booked— SJ Live’s shareholder and manager Jenny Wolfes cancelled the scheduled show for the night, closed the doors to the club, and asked Embay to leave. Embay left, but returned with a gun and shot into the crowd that had gathered outside.
In July, Chief of Police Edgardo Garcia issued a notice of intention to revoke Diamond’s entertainment permit, alleging several violations of San Jose Municipal Code Chapter 6.60 by creating a public nuisance. An administrative hearing reduced the sanction from revocation to a 30-day suspension, which was upheld on administrative appeal.
After a petition in state court for a writ of administrative mandamus was denied, Diamond filed the complaint in federal court.
Facial Challenge
Nguyen noted that Diamond challenges the licensing provisions as facially invalid prior restraints. She said that “[a]lthough facial challenges are disfavored,…licensing schemes may be facially unconstitutional if they have a close enough nexus to expression” or vest “unbridled discretion” in government authorities. The judge wrote: “We need not decide whether the City’s licensing scheme has a nexus to expression. Even assuming it does, Diamond’s facial challenge nevertheless fails because the Nuisance Provisions do not confer unbridled discretion on any City official.”
The challenged definitions of “public nuisance” in Chapter 6.60 specifically reference the meaning of the term as delineated in California Civil Code §§3479 and 3480, as well as in other code provisions. Sec. 3479 defines nuisance, in relevant part, as:
“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property….”
Sec. 3480 clarifies that a public, as opposed to a private, nuisance is “one which affects at the same time an entire community or neighborhood, or any considerable number of persons.”
1997 Decision
Nguyen pointed to the 1997 California Supreme Court case of People ex rel. Gallo v. Acuna, in which then-Justice Janice Brown said that under §§3479 and 3480, “not every interference with collective social interests constitutes a public nuisance….the interference must be both substantial and unreasonable.”
Finding that language determinative, Nguyen said:
“In other words, the risk of abuse by a Chief of Police who may find something subjectively ‘indecent or offensive to the senses’ is cabined by the additional requirement that it be both objectively unreasonable and substantial….
“[J]udicial construction of California Civil Code §§ 3480 and 3479 imposes clear limits on their definition of a public nuisance—that it be both objectively unreasonable and substantial.”
Under these circumstances, she declared:
“Because the Nuisance Provisions are narrow, objective, and definite enough to constrain discretionary authority….Diamond’s facial attack fails.”
Due Process Challenge
The city declined Diamond’s request to access the video evidence due to the fact that Embay was under criminal investigation. Nguyen said that the “refusal, while unfortunate, does not give rise to the level of a constitutional violation in this case,” opining:
“The procedures employed here…significantly limited the risk of erroneous deprivation. Thus, the inability to access video evidence alone does not demonstrate a violation of the constitutional guarantee of adequate pre-deprivation procedures.”
Finding any error to be harmless, she continued:
“Diamond never explains how viewing the video tapes might have affected the outcome of the hearing. Diamond had the police report, which describes the videos’ contents in detail, prior to the hearing.”
Collins’ Dissent
Collins disagreed with Nguyen’s opinion on two counts. Addressing the undecided question, he said “the City’s licensing scheme plainly has a sufficient nexus to expression” and looked to the 2022 Ninth Circuit case of Spirit of Aloha Temple v. Maui Planning Commission to determine whether the scheme afforded unbridled discretion to the city officials.
In that case, he said, a distinction was drawn between “a permitting system that allows a permit to be denied based on adverse effects on neighboring property that are tied to “an objective factor like ‘safety’ ”—which drew approval—and “a system that relies on more amorphously defined adverse effects,” which was found to be inadequate.
“The challenged provisions here fall on the latter side of that line,” Collins said.
‘Amorphously Defined’
He continued:
“[I]n reaching a contrary conclusion, the majority relies on the California Supreme Court’s statement that the nuisance standard provided in § 3479 ‘is an objective one.’…But that comment merely refers to the fact that the substantive standard—whatever it is—must be judged from the perspective of ‘reasonable persons’ rather than particular neighbors….That does not resolve the problem here, which is that the range of considerations that could count as ‘indecent’ or ‘offensive to the senses’ is too amorphously defined to adequately channel discretion in the First Amendment permitting context.” Collins also disagreed that Diamond did not state a claim for a due process violation, declaring:
“[T]he City’s grounds for denying access to the videos were insubstantial: the fact that there was a pending criminal investigation into the shooting does not justify withholding evidence from a civil proceeding while simultaneously cherry-picking that same evidence and presenting it in a filtered format, and that is double true given that some of the withheld video evidence had originated from Diamond itself. The majority’s rejection of this claim rests on factual speculation that is wholly inappropriate in the context of a motion to dismiss….”
The case is Diamond S.J. Enterprises, Inc. v. City of San Jose, 20-15085.
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