The Ninth U.S. Circuit Court of Appeals has reversed a District Court's grant of summary judgment to two adult bookstores. The stores had claimed that a Los Angeles ordinance requiring the dispersal of adult businesses violated the First Amendment. The Ninth Circuit found that the declarations upon which the summary judgment was based were biased did not amount to "actual and convincing" evidence sufficient to cast doubt on the rationale for the ordinance.

The ruling is the latest in a 15-year-old case that the court called "resilient." Yet the ruling settled nothing. All the Ninth Circuit did was return the case, known as Alameda Books, to District Court for trial. 

First, some background. In the mid-1970s, the City of Los Angeles conducted a study from which city officials concluded that incidences of crime are higher in areas with concentrations of adult businesses. In 1978, the city enacted an ordinance requiring, among other things, that an adult arcade not be located within 1,000 feet of an adult bookstore. Five years later, the city amended the ordinance to clarify that an adult arcade and adult bookstore also could not operate in the same establishment. 

Alameda Books and Highland Books opened during the early 1990s as combination adult bookstore and arcade. In 1995, a city inspector informed Alameda Books and Highland Books that they were in violation of the ordinance. They brought suit in U.S. District Court for the Central District of California pursuant to 42 U.S.C. ยง 1983, a federal statute that provides a remedy for persons who, under color of state law, are deprived of rights, privileges or immunities granted under federal law or the U.S. constitution. 

The bookstores won at the trial court and appellate court levels, but the U.S. Supreme Court reversed those decisions in City of Los Angeles v. Alameda Books, Inc., (2002) 535 U.S. 425 (see CP&DR Legal Digest, June 2002). In a 5-4 decision, the high court created a new framework, based on Renton v. Playtime Theaters, Inc, (1986) 475 U.S. 41, for reviewing ordinances aimed at reducing the secondary effects of adult businesses. 

The case then hung in limbo for several years while the Ninth Circuit decided other cases based on the Supreme Court's ruling. Finally, District Court Judge Dean Pregerson granted summary judgment against the City of Los Angeles, finding the bookstores' evidence was actual and convincing enough to cast doubt on the city's purpose in enacting the ordinance. On appeal, the Ninth Circuit found that the declarations were facially biased and insufficient to call into question the municipality's justification of the ordinance.

The Ninth Circuit Court, citing Renton, articulated the applicable legal test to determine whether an ordinance violates the First Amendment: 1) Does the regulation completely ban protected expression? 2) Was the city's purpose in enacting the provision to ameliorate secondary effects? 3) If so, the regulation is subject to "intermediate scrutiny" and the court "must ask whether the provision is designed to serve a substantial government interest, and whether reasonable alternative avenues of communication remain available." 

For a plaintiff to show no substantial government interest exists, the plaintiff must either demonstrate that the municipality's evidence does not support its rationale or furnish evidence that disputes the municipality's factual findings. If the plaintiff fails to do either, then the regulation stands. If the plaintiff succeeds in casting doubt on the city's rationale, the burden shifts back to the city to supplement the record with new evidence justifying the ordinance. To successfully cast doubt, the plaintiff must offer "actual and convincing" evidence that does "more than challenge the government's rationale; it must convincingly discredit the foundation upon which the government's justification rests." (Imaginary Images, Inc. v. Evans (4th Cir. 2010) 612 F.3d 736, 747 (citing Giovani Carandola, Ltd. v. Bason (4th Cir. 2002)303 F.3d 507, 516).) Under the Supreme Court's Alameda Books ruling, a municipality's justification cannot be that its regulation will reduce secondary effects simply by reducing speech proportionately.

In this case, the issue is whether the ordinance was designed to serve a substantial government interest. The specific question for the Ninth Circuit was whether the evidence provided by Alameda Books and Highland Books (which now operate a single corporation, Beverly Books, Inc.) was sufficient to cast doubt on the city's rationale. The Ninth Circuit explained that a plaintiff must do more than point at a municipality's lack of empirical evidence or challenge a city's methodology. The court cited a Sixth Circuit decision, Richland Bookmart v. Knox County, (6th Cir. 2009) 555 F.3d 512, 527-28, in explaining that a plaintiff bears a heavier evidentiary burden in attempting to cast doubt than the municipality does in justifying the ordinance. 

Providing the bookstores' evidence were declarations from the vice president of Beverly Books and from an individual who installs adult arcade systems, including the systems in the plaintiffs' establishments. Both men said that the adult bookstore and adult arcade could not be separated because a stand-alone adult arcade would not attract a significant number of customers and would be perceived as "seedy." The ordinance would thus reduce secondary effects simply by reducing speech proportionately, in violation of the First Amendment, they sad. The declarations contained lengthy passages of identical text. Despite the city's objection to the bias of the evidence, Judge Pregerson found the declarations to be actual and convincing enough to justify summary judgment in favor of the bookstores.

The Ninth Circuit, however, found that the failure of the District Court to take into account the bias of plaintiffs' witnesses was a significant issue. "The content of the declaration strike us a plausible, but the sources are necessarily suspect." District Court Judge Richard Cudahy, sitting by assignment to the Ninth Circuit, wrote for the court, noting the men's self-interest in the matter.

Because the credibility of a witness is almost categorically a trial issue, summary judgment was inappropriate, the unanimous three-judge appellate panel ruled. The court remanded the case for further proceedings in District Court.

Since the U.S. Supreme Court's ruling in Alameda Books, the Ninth Circuit has yet to find that a plaintiff has successfully cast doubt on a city's evidence or rational for adult business regulation. This case articulates an important presumption in favor of a city's reasoning.

The Case:

Alameda Books et al. v. City of Los Angeles, No. 09-55367, 2011 DJDAR 1672, 2011 U.S. App. LEXIS 1769. Filed January 28, 2011.

The Lawyers:

For Alameda Books: Clyde DeWitt, (702) 386-1756.

For the city: Steven Blau, city attorney's office, (213) 978-8244.