In 2021, the San Francisco International Arts Festival (“SFIAF”) and affiliated artist Nkechi Emeruwa were denied permits for two outdoor performance events due to city and state limitations on public gatherings implemented in response to the COVID-19 pandemic.  Together, SFIAF and Emeruwa brought suit in federal district court against San Francisco Mayor London Breed claiming the denials were unconstitutional.  Specifically, the plaintiffs sued Breed for violations of freedom of expression, equal protection, and due process under 42 U.S.C. § 1983.  Even after filing three amended complaints, the plaintiffs’ constitutional claims were still insufficient to withstand dismissal.

Because the plaintiffs sued Breed in her official capacity, they needed to demonstrate that their alleged injuries stemmed from an official government policy or custom.  Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 697 (1978).  The plaintiffs failed to meet this standard; rather, they merely stated that their constitutional rights were violated on two occasions in 2021.  Although they additionally attempted to assert that Breed “ratified” decisions to deny permits that resulted in constitutional violations, they failed to adequately allege any supporting facts.

Failure to satisfy the Monell standard alone justified dismissal of the claims brought under Section 1983.  However, the court continued to explain additional shortcomings in each claim.  In asserting their freedom of expression claim, the plaintiffs failed to identify a legislative act that unconstitutionally infringed on speech, any facts indicating viewpoint discrimination, or any regulation that failed to satisfy the intermediate scrutiny standard applicable to time, place, and manner restrictions.  In support of their equal protection claim, the plaintiffs did not allege that any other group was granted a permit during the same period that their applications were denied.  And for their due process claim, the plaintiffs failed to demonstrate denial of adequate procedural protections of a liberty or property interest; instead, they simply alleged that Breed denied the permits in retaliation against their previous suits against her, failure to support her, and challenge of public orders.

Understandably frustrated with the plaintiffs’ failure to write short and plain statements, provide specific facts, and state a plausible claim for relief on their fourth attempt at a complaint, the court noted that any further leave to amend would be futile.  The court denied plaintiffs leave to amend their complaint a fifth time and dismissed the case with prejudice.

San Francisco International Arts Festival v. London Breed, No. 20-cv-07314-JD, 2022 WL 658971 (N.D. Cal., Mar. 4, 2022)

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Alexandra A. Haggarty

Alex Haggarty represents developers and landowners in real estate and land use matters. Her real estate practice includes acquisition, disposition, development and entitlement of commercial, residential and agricultural land. Alex also works with developers in public hearings and appeals for zoning, annexation, subdivision…

Alex Haggarty represents developers and landowners in real estate and land use matters. Her real estate practice includes acquisition, disposition, development and entitlement of commercial, residential and agricultural land. Alex also works with developers in public hearings and appeals for zoning, annexation, subdivision and other land use approvals. Alex assists with rural land and conservation easement transactions, as well.