                                                                            FILED
                            NOT FOR PUBLICATION                             APR 17 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WILLIAM D. FITZGERALD,                            No. 12-56773

              Plaintiff - Appellant,              D.C. No. 8:11-cv-01355-JVS-
                                                  MLG
  v.

COUNTY OF ORANGE; BILL                            MEMORANDUM*
CAMPBELL; JOHN MOORLACH;
JANET NGUYEN; JAMES C. PENA, in
their official and individual capacities,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                        Argued and Submitted April 9, 2014
                               Pasadena, California

Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.

       William D. Fitzgerald appeals from the district court’s dismissal of his facial

challenge, and grant of summary judgment to Orange County and four members of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the Orange County Board of Supervisors (“defendants” or “the county”) on his as-

applied challenge, to Orange County Rule of Procedure 46 (“Rule 46 ”) and the

Speaker Guidelines (“Guidelines”) that govern public speaking during Orange

County Board of Supervisors meetings. Because the parties are familiar with the

history of the case, we need not recount it here.

                                            I

      The district court properly granted summary judgment on Fitzgerald’s as-

applied challenge. Even viewing the facts in the light most favorable to Fitzgerald,

which we must at this stage, the record shows that at both meetings, Fitzgerald

departed the speaker’s podium of his own accord. Thus, he did not suffer injury at

either meeting. We affirm the district court’s grant of partial summary judgment to

the county on Fitzgerald’s federal and state constitutional as-applied claims.

                                           II

      The district court erred in concluding that Fitzgerald lacked standing to

pursue a facial challenge. “[T]o satisfy Article III's standing requirements, a

plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and

particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the

injury is fairly traceable to the challenged action of the defendant; and 3) it is

likely, as opposed to merely speculative, that the injury will be redressed by a


                                            2
favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 180-81 (2000).

      First Amendment cases “raise unique standing considerations that tilt

dramatically toward a finding of standing.” Lopez v. Candaele, 630 F.3d 775, 781

(9th Cir. 2010) (internal alterations, citations, and quotation marks omitted). In

this context, a plaintiff may make a so-called “pre-enforcement” challenge to a

statute that generates “an actual and well-founded fear that the challenged statute

will be enforced.” Libertarian Party of L.A. Cnty. v. Bowen, 709 F.3d 867, 870

(9th Cir. 2013). “In evaluating the genuineness of a claimed threat of prosecution,

courts examine three factors: (1) whether the plaintiffs have articulated a concrete

plan to violate the law in question, (2) whether the prosecuting authorities have

communicated a specific warning or threat to initiate proceedings, and (3) the

history of past prosecution or enforcement under the challenged statute.” Id. at 870

(internal quotation marks omitted).

      In applying these factors to this case, we conclude that Fitzgerald had

standing to pursue his First Amendment facial challenges to Rule 46 and the

Guidelines. First, as the district court correctly determined, Fitzgerald did have a

concrete plan to violate both Rule 46 and the Guidelines. Second, Fitzgerald

sufficiently established a credible threat of enforcement. Board Supervisors made


                                          3
comments that specifically targeted the content of Fitzgerald’s speech, and either

explicitly stated or implied that Fitzgerald’s comments had gone beyond the

bounds of free speech and acceptable behavior at a board meeting. In addition, an

officer approached Fitzgerald at both meetings and told him to “stand down” and

followed Fitzgerald out of the room at the first meeting to reiterate that his

comments were inappropriate. These actions, taken collectively, constitute more

than a simple allegation of subjective chill, Lopez, 630 F.3d at 787, or “the mere

existence of a proscriptive statute,” Libertarian Party, 709 F.3d at 871 (internal

quotation marks omitted).

      Additionally, the Guidelines, which are posted on the website and available

at public meetings, quote part of Rule 46 and thereby create a general and broad

proscription similar to the online instructions posted by the California Secretary of

State in Libertarian Party. 709 F.3d at 871 (“The Secretary has exercised her

discretion to include this specific requirement in her instructions to candidates and

to frame the requirement in absolute terms.”). In sum, Fitzgerald has met the

burden of showing he has a concrete plan to violate Rule 46 and the Guidelines,

and that there is a credible threat of enforcement against him, and has therefore




                                           4
established standing in the pre-enforcement First Amendment context.1 The

district court erred in ruling otherwise.

                                            III

      The district court also erred in holding that Fitzgerald’s claims were not ripe

for review. “The constitutional component of ripeness overlaps with the ‘injury in

fact’ analysis for Article III standing.” Wolfson v. Brammer, 616 F.3d 1045, 1058

(9th Cir. 2010) (citing Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d

1134, 1138-39 (9th Cir. 2000) (en banc)). Thus, the ripeness inquiry is “largely the

same” as the one for standing. Id. Because the district court concluded

Fitzgerald’s facial challenge was not ripe “for the same reasons” that he failed to

establish standing, the court erred as to ripeness as well.

                                            IV

      Concluding that the district court erred in its holdings that Fitzgerald lacked

standing to assert a First Amendment challenge and that such a challenge was not

ripe for review does not end our inquiry. Remaining is the question of the merits



      1
        Although Fitzgerald did not show a history of enforcement of Rule 46 and
the Guidelines in Orange County, we conclude that this third factor is not
dispositive in Fitzgerald’s case. Libertarian Party, 709 F.3d at 872 (stating that
the “history of enforcement” factor is “not dispostive,” especially where “the
challenged provisions have not been commonly and notoriously violated” (internal
quotation marks omitted)).

                                            5
of the First Amendment facial challenge to Rule 46 and the Guidelines. If the

record were undeveloped, we would remand that question for the district court to

decide it in the first instance. However, here, we exercise our discretion to reach

the merits of Fitzgerald's facial challenge because “the issue presented is purely

one of law and . . . the pertinent record has been fully developed.” Greger v.

Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).

      Both parties agree that the controlling Ninth Circuit law was established by

White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990), Norse v. City of Santa

Cruz, 629 F.3d 966 (9th Cir. 2010) (en banc), and related cases. Under binding

circuit law, once a government meeting is opened to public participation, it

becomes a limited public forum. City of Norwalk, 900 F.2d at 1425. A

government entity can regulate a limited public forum by placing reasonable

restrictions on the time, place, and manner of speech. Norse, 629 F.3d at 975. It

may also place restrictions on speech content, “as long as the content-based

regulations are viewpoint neutral and enforced that way.” Id.

      In City of Norwalk, we considered an ordinance almost identical to Rule 46

and the Guidelines. In that case, we sustained the ordinance against a First

Amendment challenge because of the city’s interpretation that the ordinance’s

sanctions could only be imposed “when someone making a proscribed remark is


                                          6
acting in a way that actually disturbs or impedes the meeting.” 900 F.2d at 1424.

Upon the record and the representations of counsel, we adopted the city’s

interpretation of the ordinance, citing Frisby v. Schultz, 487 U.S. 474 (1988). In

Frisby, the Supreme Court relied on the representations of the town’s counsel as to

the town’s interpretation of the statute. Id. at 480-84.

      Here, the county’s counsel has represented that the county has and will

continue to interpret Rule 46 and the Guidelines as the city did in City of Norwalk,

namely that sanctions could only be imposed “when someone making a proscribed

remark is acting in a way that actually disturbs or impedes the meeting.” Counsel

further represented that the county’s understanding of “disturbance” was consistent

with the construction we gave it in Norse, namely, that the disruption must be an

“actual disruption” and not “any violation of . . . decorum” or a “constructive

disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or

imaginary disruption.” 629 F.3d at 976. Counsel’s representations are supported

by the record, in which various government officials testified.

      Given these binding concessions as to the County of Orange’s interpretation

of Rule 46 and the Guidelines, we conclude–as we did in City of Norwalk–that

Rule 46 and the Guidelines are not facially unconstitutional. Therefore, we affirm

the judgment of the district court as to the facial challenge, albeit on other grounds.


                                           7
                                          V

      In sum, we affirm the judgment of the district court as to the as-applied

challenge. We hold that the district court erred in rejecting the facial challenge for

lack of standing and ripeness. However, reaching the merits of the facial

challenge, we conclude that Rule 46 and the Guidelines are not constitutionally

overbroad given the restrictions and interpretations applied to the policy by the

county. Therefore, we affirm the judgment of the district court.



      AFFIRMED.




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