MARK WAXMAN, CA Bar No. 58579 mwaxman foley.com MIKLE S. IE CA Bar No. 316372 m'ew@fole .com . F0 EY RDNER LLP 3579 VALLEY CENTRE DRIVE, SUITE 300 SAN DIEGO, CA 92130 TELEPHONE: 858.847.6700 FACSIMILE: 858.792.6773 DAVID LOY, CA Bar No. 229235 dav1dlo @aclusandie 0.0: ACLU F6 SAN DIEGO IMPERIAL COUNTIES PO. Box 87131 SAN DIEGO, CA 92138-7131 TELEPHONE: 619.232.2121 FACSIMILE: 619.232.0036 Attorneys for Plaintiff Susan Porter UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SUSAN PORTER, Case No. '18cv1221 GPC JMA Plaintiff, COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF VS. WILLIAM D. GORE, Sheriff of San Die 0 Coun 1n h1S of?mal capaeity; WA REN ANLEY, California nghway Patrol, in 1113 of?mal capacity, Defendants . COMPLAINT FOR DECLARATORY AND ase 0. 4842-82 199-3667.? 4842-82 Case Documentl Filed 06/11/18 PagelD.2 Page20f8 Plaintiff Susan Porter (?Ms Porter?) brings this free speech case against Sheriff William D. Gore (?Sheriff Gore?) and California Highway Patrol Commissioner Warren Stanley (?Commissioner Stanley?) in their of?cial capacities, and alleges as follows. INTRODUCTION 1. This Complaint seeks declaratory and injunctive relief to protect and vindicate the rights of the concerned citizens of the City of Vista and other communities within California against unconstitutional enforcement of California Vehicle Code 27001 to silence expression in support of political protests and otherwise. By prohibiting numerous uses of a vehicle horn for expressive purposes, regardless of noise level or impact on traf?c safety, the statute violates the First Amendment of the United States Constitution and Article I, 2 of the California Constitution. JURISDICTION AND VENUE 2. The Court has original jurisdiction over Plaintiff? federal claim under 28 U.S.C. 1331 and 1343(a)(3). I 3. The Court has supplemental jurisdiction over Plaintiffs state law claim under 28 U.S.C. 1367 because the state law claim is so related to the claim over which the Court has original jurisdiction that it forms part of the same case or controversy under Article of the United States Constitution. 4. The Court may grant declaratory and injunctive relief pursuant to 42 U.S.C. 1983, 28 U.S.C. 2201, and/or Federal Rules of Civil Procedure 57 and 65. 5. Venue is proper in this judicial district under 28 U.S.C. 1391(b) because the events that give rise to this action occurred within this district. 6. The Court has personal jurisdiction over Sheriff Gore and Commissioner Stanley, who on information and belief are residents of the state of California. PARTIES 7. Plaintiff Susan Porter is a resident of the State of California and County of San Diego. COMPLAINT FOR DECLARATORY AND - - ase o. 9-3667.1 *4842-825. Case Documentl Filed 06/11/18 PageID.3 Page30f8 8. Upon information and belief, Defendant Sheriff Gore is the Sheriff of San Diego County, responsible for direction, control, management, and oversight of the San Diego County Sheriff?s Department, including its enforcement of traf?c laws in unincorporated areas of San Diego County and the cities of Del Mar, Encinitas, Imperial Beach, Lemon Grove, Poway, San Marcos, Santee, Solana Beach and Vista. He is sued in his of?cial capacity. 9. Upon information and belief, Defendant Commissioner Stanley is Commissioner of the California Highway Patrol CHP is under the direction and control of the commissioner. Cal. Veh. Code 2107. The CHP commissioner ?shall perform all duties, exercise all powers and jurisdiction, assume and discharge all responsibilities, and carry out and effect all purposes vested by law in the department,? including but not limited to direction and control of traf?c enforcement by all CHP of?cers. Cal. Veh. Code 2108. He is sued in his of?cial capacity. 10. The CHP ?commissioner shall enforce all laws regulating the operation of vehicles and the use of the highways,? Cal. Veh. Code 2400(b), and ?make adequate provision for patrol of the highways at all times of the day and nigh Cal. Veh. Code ?2401. Under California law, a ?highway? is ?a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.? Cal. Veh. Code 360. 11. ?All members of the California Highway Patrol have the powers of a peace officer.? Cal. Veh. Code 2409. As a result, the authority of CHP of?cers under the direction and control of Commissioner Stanley ?extends to any place in the state.? Cal. Penal Code 830.2. FACTUAL BACKGROUND 12. Ms. Porter lives in Oceanside and has participated in weekly protests at the district of?ce of Representative Darrell Issa in Vista, which occurred on Tuesdays from 10:00 am. to 11:00 am, beginning soon after the November 2016 election and concluding in April 2018. The protests generated noise from both opponents and COWLAINT FOR DECLARATORY AND INIUNCTIVE RELIEF Case No. 9-3667.1 4842-82 Case Documentl Filed 06/11/18 PageID.4 Page4of8 supporters of Representative Issa. For example, a supporter of the Representative often employed a sound system with loud speakers across the street from the of?ce. 13. Representative Issa?s Vista of?ce is located in an of?ce building at 1800 Thibodo Road, Vista, California, 92081. The building faces Thibodo Road, a main arterial road, with no buildings immediately adjacent to it. Across from the building is a wooded slope with houses at the top. Behind the building is California Route 78, a six- lane freeway. 14. On October 17, 2017, Ms. Porter participated in the weekly protest at Representative Issa?s of?ce, and parked her car nearby. 15. On that date, while she was participating in the protest, a number of deputy sheriffs arrived at the location of the protest, and issued citations to various individuals. 16. While deputies were present during the protest, Ms. Porter moved her car. As she did so, she drove past the protest, and sounded her vehicle horn to express her support of the protest. 17. Other drivers often sounded their vehicle horns in support of the protest, and were doing so on that day. 18. In a multitude of circumstances, drivers routinely sound vehicle horns to express support or approval of parades, protests, rallies, demonstrations, or fundraising or for other expressive purposes such as greeting a relative, friend, or acquaintance. 19. Such uses of vehicle horns are expressive because they are intended to convey a message unrelated to a safety related warning and are so understood by the general public. 20. Ms. Porter?s use of a vehicle horn to support for the weekly protest at Representative Issa?s of?ce was expressive, because it was intended to convey a message of support for the protest, and was so understood by others. 21. After Ms. Porter sounded her horn in support of the protest, Sheriff?s Deputy K. Klein (?Deputy Klein?), ID. Number 7275, directed Ms. Porter to pull over. COMPLAINT FOR DECLARATORY AND IN JUN CTIVE RELIEF Case No. 9-3667.1 4842-825 Case Documentl Filed 06/11/18 PagelD.5 Page50f8 22. Deputy Klein told Ms. Porter she was pulled over for sounding her vehicle horn, and issued her a citation for alleged violation of Vehicle Code 27001, which states that ?[t]he driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn,? but ?[t]he horn shall not otherwise be used, except as a theft alarm system? (emphasis added). Cal. Veh. Code 27001. 23. Section 27001 does not require that the use of a horn meet any speci?ed noise level, disturb the peace, distract drivers or pedestrians, or endanger safety. 24. Upon information and belief, Deputy Klein was acting within the course and scope of his duties as a Sheriff?s Deputy, and at the direction and under the control of Sheriff Gore at all relevant times. 25. Ms. Porter?s citation, copy of which is attached hereto as Exhibit A, states that the citation was for violation of [sic] unreasonable use of horn? and contains no allegations as to noise level, disturbing the peace, distracting drivers or pedestrians, or endangering safety. 26. The citation had an appearance date of December 12, 2017, which Ms. Porter attended. Her hearing to contest the citation was scheduled for February 5, 2018, but when Deputy Klein did not appear, the citation was dismissed. 27. Ms. Porter regularly drives her vehicle in areas of San Diego County and the State of California where the Sheriff?s Department or California Highway Patrol is responsible for traf?c enforcement. 28. In driving her vehicle in those areas, Ms. Porter observes rallies, protests, demonstrations, or other events for which she would like to express her support through use of her vehicle horn. 29. Given the citation issued to her and her knowledge of the statute, Ms. Porter reasonably fears that the Sheriff?s Department or California Highway Patrol will enforce section 27001 against her if she uses her vehicle horn for such expressive purposes. CONIPLAINT FOR DECLARATORY AND 1N1 UNCTIVE RELIEF -4- Case No. 9-3667.1 KDOOMION 4842-82 Case Documentl Filed 06/11/18 PagelD.6 Page6of8 30. As a result, Ms. Porter is censoring herself by refraining from using her vehicle horn for expressive purposes, including but not limited to expressing support for political protests, rallies, or demonstrations. 31. Upon information and belief, in issuing the citation Deputy Klein was acting pursuant to of?cial Sheriff?s Department policy or direction issued, promulgated, or approved by Sheriff Gore as a policymaker for law enforcement matters. 32. Upon information and belief, pursuant to said policy or direction, the Sheriff?s Department continues or will continue to enforce section 27001 against the use of a vehicle horn for expressive purposes. 33. By letter dated November 9, 2017, counsel for Ms. Porter asked Sheriff Gore ?to refrain from enforcing section 27001 against protected speech.? 34. By letter dated November 29, 2017, Sheriff Gore?s chief legal adviser, speaking on behalf of and with the authority of Sheriff Gore, declined to do so, contending ?Ms. Porter?s citation was not issued as a content-based regulation of speech, but rather a straight forward violation of the Vehicle Code,? and ?Whether your legal theory is valid or not is something that is best left for a court to decide.? 35. The actions of Sheriff Gore and Commissioner Stanley, in their of?cial capacities, have chilled, deterred, and infringed and are continuing to chill, deter, and infringe Ms. Porter?s right to engage in protected speech. 36. The acts, omissions, policies, customs, and/or practices of Sheriff Gore and Commissioner Stanley in their of?cial capacities, and their employed personnel, as alleged herein, are causing irreparable harm to Ms. Porter due to interference with her constitutional right to freedom of speech and expression, for which she has no adequate remedy at law. 37. An actual controversy has arisen and now exists between Ms. Porter and Defendants in their of?cial capacities regarding Ms. Porter?s ability to exercise her right to use her vehicle horn for expressive purposes, including but not limited to showing support for political protests, rallies, or demonstrations. COMPLAINT FOR DISECLARATORY AND INJUNCTIVE RELIEF Case No. 89-36674 4842-82 Case Document 1 Filed 06/11/18 PagelD.7 Page 7 of 8 FIRST CLAIM VIOLATION OF 42 U.S.C. 1983 (First Amendment, Against All Defendants) 38. Ms. Porter hereby alleges and incorporates by reference each and every allegation contained in paragraphs 1 through 37 above, inclusive. 39. On its face or as applied, Vehicle Code 27001 violates the First Amendment because it constitutes an overbroad restriction on the use of a vehicle hoi?n for speech or expression. 40. On its face or as applied, Vehicle Code 27001 violates the First Amendment because it constitutes a content-based restriction on the use of a vehicle horn for speech or expression that is not narrowly tailored to a compelling governmental interest. 41. On its face or as applied, even if it is considered content-neutral, Vehicle Code 27001 violates the First Amendment because it prohibits numerous uses of a vehicle horn for speech or expression and burdens substantially more speech or expression than necessary to protect legitimate governmental interests. 42. In their of?cial capacities, Defendants are violating or imminently will violate the First Amendment by enforcing section 27001 against protected speech or expression. SECOND CLAIM VIOLATION OF Article I, 2 of the California Constitution (Against Sheriff Gore) 43. Ms. Porter hereby alleges and incorporates by reference each and every allegation contained in paragraphs 1 through 37 above, inclusive. 44. On its face or as applied, Vehicle Code 27001 violates Article I, 2 of the California Constitution because it constitutes an overbroad restriction on the use of a vehicle horn for speech or expression. 45. On its face or as applied, Vehicle Code 27001 violates Article I, 2 of the California Constitution because it constitutes a content-based restriction on the use of a COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -6- Case No. 9-3667.1 4842-82 Case Documentl Filed 06/11/18 PagelD.8- PageBot8 vehicle horn for speech or expression that is not narrowly tailored to a compelling governmental interest. 46. On its face or as applied, even if it is considered content-neutral, Vehicle Code 27001 violates Article I, 2 of the California Constitution because it prohibits numerous uses of a vehicle horn for speech or expression and burdens substantially more speech or expression than necessary to protect legitimate governmental interests. 47. In his of?cial capacity, Sheriff Gore is violating or imminently will violate Article 1, Section 2 of the California Constitution by enforcing section 27001 against protected speech or expression. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests the Court to enter judgment against Defendants as follows: 1. Preliminarily and permanently enjoining Defendants and Defendants? of?cers, agents, servants, and employees and any other persons who are in active concert or participation with any of the foregoing persons from enforcing Vehicle Code 27001 against protected speech or expression; 2. Declaring the enforcement of Vehicle Code 27001 against protected expression to be unlawful. 3. Awarding Plaintiff costs and attorney fees as authorized by Fed. R. Civ. P. 54, 42 U.S.C. 1988, and/or any other applicable law; and 4. Awarding other such relief as the Court deems just and proper. DATED: June 11, 2018 Respectfully submitted, Bv: S/Mz'kle S. Jew J. Mark Waxman 'Mikle S. Jew Foley Lardner LLP Attorneys for Plaintiff Susan Porter COMPLAINT FOR DEIZCLARATORY AND - ase o. 96667.1