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Performers Rights - Freedom
of Speech in Public Places
The Case filed against Seattle Center October 2003
STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
MICHAEL BERGER, also known as “MAGIC MIKE,” a single man,
CITY OF SEATTLE; and VIRGINIA ANDERSON, Director of Seattle Center; MICHAEL ANDERSON, Emergency Service Manager for Seattle Center; ___________, Police Officer for the City of Seattle, TEN UNKNOWN employees and/or officers of the Seattle Center and the City of Seattle; all in both their individual and official capacities,
No. CV 03-3238Z
COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF FOR CIVIL RIGHTS VIOLATIONS
Plaintiff Michael Berger (hereinafter referred to as “Magic Mike”), by and through his attorney of record, Elena Luisa Garella, brings this Complaint against the Defendants, agents and successors, and in support thereof avers the following:
I. PRELIMINARY STATEMENT
1. This action challenges the constitutionality of several rules promulgated by a public park, Seattle Center, and occasionally and arbitrarily enforced on the park’s land by the City of Seattle and its employees, to the detriment of Magic Mike’s civil rights and livelihood. Magic Mike has been the target of harassment by city officials seeking to enforce unconstitutional regulations that would limit Magic Mike’s – and everyone else’s—rights to engage in the quintessential protected activity—speaking freely in a public park.
2. Jurisdiction is conferred on this Court by existence of a federal question and questions arising under particular statutes, to wit, the First and Fourteenth Amendments to the United States Constitution, 28 U.S.C. §§ 1331, 1343(a)(3), and 42 U.S.C. §§ 1983, 1988.
3 Plaintiff’s claim for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202, and by Rules 57 and 65 of the Federal Rules of Civil Procedure.
4. Plaintiff Magic Mike is a resident of the State of Washington and has, for about twenty years, performed magic tricks and created balloon animals on the streets and parks in the Northwest. Hundreds of thousands of people, possibly millions, have enjoyed his act. During his act, he talks to his audience, particularly to the children, often encouraging them to continue their education.
5. Defendant City of Seattle is a duly organized City of the State of Washington, and has undertaken the acts complained of below pursuant to formal governmental policy. Seattle Center is a collection of properties owned and managed by the City as a department of the City.
6. Defendant Virginia Anderson is the Director of the Seattle Center Department, and is ultimately responsible for the content and promulgation of Seattle Center Campus Rules (hereinafter referenced as the “Rules.”)
7. Defendant Michael Anderson is the Emergency Service Manager for Seattle Center and is responsible for the enforcement of Seattle Center Rules.
8. TEN UNKNOWN employees and/or officers of the Seattle Center and the City of Seattle; all in both their individual and official capacities, have been involved in the creation of the Seattle Center Rules and their enforcement.
9. Magic Mike does not perform in public places for money; rather he “passes the hat” so that those who are so inclined may donate. This source of income is important to Magic Mike’s livelihood, although he never requires a donation or sells any of his balloon creations. One of Magic Mike’s preferred venues is the public, outdoor spaces at Seattle Center.
10. Seattle Center is the fourth largest visitor destination in the United States, with over 10 million visitors a year.
11. Until the early 1990s, Magic Mike performed at Seattle Center with very little trouble. He was welcomed as one of the people who brought life and joy to the Seattle Center and its major events, such as Bumbershoot. For example, in September of 1988, The Seattle Times featured a large photograph of Magic Mike in a story about Bumbershoot. Noting that a quarter million people were expected to attend the festival, the paper reported:
All those people, all that commotion -- plus 90 degree heat -- and you've got the ingredients for pure craziness.
That doesn't faze Magic Mike, who is wearing an octopus balloon hat and delighting passersby with his disappearing ball tricks near the international fountain all this long holiday weekend. You think it's fun to come to these things? It's more fun to work them," he says, pulling a purple scarf from his ear, "I been doing it 33 years. I just keep moving around to stay in the shade.”
12. By the early 90s, however, the free-spirited feel of the Seattle Center began to be dampened by customs and rules intended to tightly control the ambience of the park. Magic Mike was ejected out of the park several times for performing his act. As surveillance over performers increased, fewer people performed at the Seattle Center. The joy of performing was much diminished, as well, and the crowds no longer had the benefit of seeing as many artistic performances and hearing as many political viewpoints.
13. In May of 1996, Magic Mike sued the City of Seattle and several of its police officers in this Court. The Complaint asserted that Magic Mike had been ejected from Seattle Center after invoking his free speech right to perform as he wished in a public park. The Complaint alleged, as does this Complaint, violations of 42 U.S.C. § 1983.
14. In July of 1996, Magic Mike again sued the City of Seattle and two police officers because the City summarily ejected him out of Seattle Center in a second incident for performing his magic trick and balloon sculpture act on the grounds of the park. The Complaint also alleged violations of 42 U.S.C. § 1983.
15. The two lawsuits were ultimately consolidated. In a 1997 decision denying the City’s Motion for Summary Judgment, United States Magistrate Judge John L. Weinberg noted that there is substantial authority establishing a “constitutionally protected right to perform magic tricks, create balloon sculptures, and receive voluntary donations in a public park.” The City appears not to have taken these words to heart.
16. Magic Mike’s consolidated lawsuits were settled. The settlement required the City to pay money to Magic Mike. In addition, as part of the settlement, the City promised to allow Magic Mike to perform. The City Attorney’s office also generated a memorandum that was distributed to Seattle Center, the Seattle Police Department, and other City organizations that reaffirmed the fact that the City’s regulations “permit artistic and other First Amendment expression” and that vending regulations may not be asserted against performers who merely solicit donations.
17. In July of 1999, Seattle Center ejected citizen Tim Crowley out of Seattle Center for one year for violating a ban on posters in the park and opposing a demand by Seattle Center staffers to remove it. His poster stated “Yes on I-46,” advocating voting in favor of an initiative then on the ballot. Seattle Center Deputy Director Robert Nellams later admitted that the ejection was wrong and apologized to Crowley. Crowley’s attorney, David Osgood, publicly appealed to the Defendants to “take a serious look at how they’re regulating speech [at the Seattle Center].” Osgood’s statements appeared in a widely distributed local newspaper, The Stranger.
18. Upon information and belief, Defendants have received other complaints with respect to the enforcement of rules and customs relating to Seattle Center that unconstitutionally restrict free speech rights. 19. Despite the multiple notifications of the right to perform publicly at Seattle Center, Defendants City of Seattle, Virginia Anderson, Mike Anderson and Five Unknown Employees and/or Officers have promulgated a set of Rules, entitled “Seattle Center Campus Rules” that impermissibly interfere with Magic Mike’s – and indeed all citizens’—right to freely express themselves artistically and politically. These Rules are appended as Exhibit A of this Complaint.
20. The following Seattle Center Campus Rules, and others, violate the First Amendment to the United States facially and/or as applied: -- Requiring performers to wear a badge that shows the performer’s name and photograph. See Exhibit B to this Complaint.
-- Allowing the Director, Defendant Virginia Anderson, the discretionary right to withdraw permission to perform at the Seattle Center.
-- Prohibiting performers to request donations vocally, by gesture, or through third parties.
-- Prohibiting performance before 11:00 a.m. and after 10:00 p.m. when Seattle Center is open at other times.
-- Requiring performers to stand at certain designated locations, which are far fewer in number, and farther away from the path of passersby, than required by any constitutionally permitted state purpose. -- Censoring performers from “treat[ing] any person or animal in a manner that is aggressive, menacing, vulgar, profane or abusive.” These terms are not defined.
-- Prohibiting the exercise of free speech activity, including presumptively political speech such as leafleting and signature gathering, within thirty feet of persons standing in line to obtain tickets, food or other concessions, attending any event, or seated outdoors where food and drinks are being consumed.
-- Prohibiting persons from performing at Seattle Center unless they sign a statement agreeing to comply with the Seattle Center Campus Rules, including those rules that violate Constitutional rights.
21. The Rules have and are being enforced by Seattle Center against Magic Mike by Defendants, including Five Unknown Employees and/or Officers.. Magic Mike has been ejected and barred from the public outdoor spaces of the Seattle Center for various periods of time for alleged violations of the Rules. These ejections have been conducted arbitrarily and without the benefit of substantive or procedural due process. 22. Enforcement of the Rules is wholly arbitrary, as other performers have been permitted to violate the Rules and even upon notice, defendants have not chosen to take action against some of these other people.
23. The unpredictable nature of enforcement establishes that the Rules are not necessary to serve any public purpose and instead are the convenient instruments of control and repression by the Defendants. 24. On or about July 8, 2003, Magic Mike filed a Claim for Damages with the City of Seattle alleging:
Continuing violations of my civil rights, including but not limited to, existence and enforcement of rules 1) Prohibiting my expressive conduct and speech within 30’ of a “captive audience’: 2) requiring me to stand at designated locations; 3) Charging me permit fees to perform, speak & engage in expressive activities; 4) Requiring me to wear a badge with my photo and name; 5) limiting the content of my speech by prohibiting me from asking for donations.
25. Notwithstanding receipt of Magic Mike’s Claim for Damages, the City did not respond and failed to undertake a review of the Seattle Center’s Rules. In fact, the City wholly failed to respond to Magic Mike’s claim.
26. According to its own Vision Statement, Seattle Center “exist[s] to delight and inspire the human spirit in each person and bring us together as a rich and varied community,” and is “a reflection of the Northwest itself: the cultural diversity; the commitment to the arts . . . and to education. . . and quality entertainment.”
27. While Seattle designates Seattle Center as a “Department” rather than a park, it in fact has been used as a park for decades by millions of visitors. It is a public forum to which the highest protection of free speech extends and has been a locus of free speech activity in Seattle for many decades. Under long-established Constitutional law, of which the Defendants have knowledge, speakers may only be excluded from such places when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.
28. Despite the previous lawsuits and complaints establishing free speech rights at Seattle Center and the Center’s self-imposed commitment to cultural and artistic diversity, the Defendants have imposed unconstitutional regulations aimed at prohibiting citizens from engaging in what the City arbitrarily concludes is (as described in the Rules) “inappropriate behavior.” 29. The Defendants have ignored legal precedent, legal actions, complaints, letters, and repeated notice over many years, continuing to trample the rights of the visitors to Seattle Center by imposing unconstitutional rules limiting free speech. This lack of regard for the rights of others is reckless, intentional and/or malicious.
30. By enforcing these Rules, the Defendants have damaged Magic Mike by causing him monetary losses due to fewer donations. More importantly, the Defendants have irreparably harmed Magic Mike by depriving him of his Constitutional rights, thus causing him serious emotional distress, including but not limited to, depression requiring treatment. 31. Upon information and belief, unless restrained by order of the Court, the Defendants will continue to enforce the unconstitutional portions of the Seattle Center Campus Rules, thereby causing continuing irreparable loss of First Amendment rights to the Plaintiff and others similarly situated.
32. On August 19, 2002, concerned about reports regarding the implementation of new regulations relating to performers, Magic Mike sought disclosure, pursuant to RCW 41.17, of documents “related to new proposed changes to license[d] street performers and where they can perform relating to Seattle Center grounds” and documents and e-mails prepared by the Defendant City relating to rules changes. This request was received and filed by the Defendant’s City Clerk on August 20, 2002. 33. Despite Magic Mike’s subsequent cooperation with Defendant City, the City failed to provide all the information clearly requested by the August 19, 2002 request. In particular, the City failed to provide Magic Mike with a copy of the proposed performer rules (handed out in March 2003) or the map showing the “designated performer locations” which had already been created.
V. FIRST CAUSE OF ACTION
DECLARATORY JUDGMENT — CIVIL RIGHTS — FREE SPEECH
34. This is an action for declaratory judgment pursuant to 28 U.S.C. §§ 2201, 2202, of an actual substantial justiciable controversy as alleged in paragraphs 1 through 31, set forth above. Plaintiff seeks judgment that many of the “Seattle Center Campus Rules” are unconstitutional, both facially and as applied to the Plaintiff and similarly situated persons, because the Rules violate the right of free speech guaranteed by the First and Fourteenth Amendments to the United States Constitution.
VI. SECOND CAUSE OF ACTION
DECLARATORY JUDGMENT — CIVIL RIGHTS — DUE PROCESS
35. Plaintiff incorporates by reference paragraphs 1 through 31 and 34, set forth above.
36. Plaintiff further seeks declaratory judgment that the enforcement of the Rules deprives Plaintiff, and all other persons in Plaintiff’s position, of due process of law, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. The Rules fail to provide adequate notice as to the precise nature of the conduct prohibited, thereby inhibiting the exercise of constitutionally protected rights and inviting selective, ad hoc and arbitrary prosecution. 37. Plaintiff seeks further redress against enforcement of the Rules pursuant to 42 U.S.C. § 1983. The Defendants’ actions in suppressing Plaintiff’s performances and speech do and will deprive Plaintiff of his rights, privileges and immunities secured by the Constitution and Laws, as described above. Furthermore, the Defendants’ unconstitutional actions are taken under color of state law, in violation of 42 U.S.C. §1983.
VII. THIRD CAUSE OF ACTION
INJUNCTIVE RELIEF — IRREPARABLE HARM
38. Plaintiff incorporates by reference paragraphs 1 through 31 and 34 through 37, set forth above.
39. If the Act is allowed to continue in effect or be enforced, Plaintiff and all other persons similarly situated will continue to be subjected to immediate and irreparable injury for which no adequate remedy at law exists. Plaintiff will be forced to continue to refrain from asking for donations, or freely expressing his opinions if those expressions are considered by Defendants to be in some way “aggressive, menacing, vulgar, profane or abusive.” Loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Plaintiff seeks injunctive relief pursuant to 42 U.S.C. §1983.
VIII. FOURTH CAUSE OF ACTION
40. Plaintiff incorporates by reference paragraphs 1 through 31, and 34 to 39, set forth above.
41. Enforcement of the Rules has caused, and will continue to cause, Plaintiff damages for which he is entitled to compensation. Such damages include past and future income and serious emotional distress. 42. Defendants have been aware that their policies with respect to the right of free speech are unconstitutional for many years, and yet have, with reckless disregard, intent, and/or actual malice, disregarded the Constitutional rights of Magic Mike and other persons on the Seattle Center park grounds. Therefore, pursuant to 42 U.S.C. §1983, plaintiff seeks punitive damages of such amount that the defendants will be punished, and that the defendants and other will be deterred from violating the rights of others.
IX. FIFTH CAUSE OF ACTION
VIOLATION OF WASHINGTON’S PUBLIC DISCLOSURE ACT
43. Plaintiff incorporates by reference paragraphs 1 through 5, and 32 and 33 as set forth above.
44. Defendant City has failed to comply with Chapter 42.17 of the Revised Code of Washington and Plaintiff seeks mandatory statutory damages, attorneys’ fees and costs as provided by the Act.
X. RELIEF REQUESTED
WHEREFORE, Plaintiff asks this Court:
1. To issue a temporary restraining order and/or preliminary injunction restraining Defendants, their employees, agents and successors from enforcing and executing the Rules;
2. To enter judgment declaring certain of the Rules to be in violation of the United States Constitution and 42 U.S.C. § 1983, and permanently enjoining the enforcement of its provisions; 3. For compensatory damages, for all injuries past, present and future;
4. For punitive damages as provided by 42 U.S.C. § 1983 et. seq., RCW 42.17.010 et. seq. and any other applicable law;
5. For attorneys’ fees and costs as provided by 42 U.S.C. § 1988, RCW 42.17 and any other applicable law; 6. To grant such other and further relief as this Court shall find just and proper.
Dated this ____ day of October 2003, LAW OFFICE OF ELENA LUISA GARELLA
Elena Luisa Garella, WSBA #23577
Attorney for Plaintiff Magic Mike Berger
by Magic Mike
the Magician, Seattle, Wa. 98133, except as noted. All Rights Reserved.
747 N. 135th St #227 Seattle 98133, Wa. 98133 Seattle, WA 98133 Phone (206) 632-7152 Cell (206) 632-7152