UNITED
STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
MICHAEL BERGER, also known as “MAGIC MIKE,” a single man,
Plaintiff,
v.
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,
Defendants.
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.
II. JURISDICTION
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.
III. PARTIES
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.
IV. FACTS
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
DAMAGES
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 |
