Legal Case of Navy Diver Who Sued Newport Beach for First Amendment Violation Advances

Retired Navy diver Jason Murchison recently prevailed  in his  lawsuit against the City of Newport Beach for violating his First Amendment rights by repeatedly refusing to allow him to give paid surfing lessons on its beaches.

Represented by the Pacific Legal Foundation, Murchison is challenging a Newport Beach ordinance that requires permits for anybody giving  paid lessons on the beach.  His federal lawsuit also claimed that the ordinance allowed Newport Beach an illegal monopoly on beach commercial activity and violated California coastal law.

In a decision that does not appear to have been reported anywhere, United States District Court for the Central District of California Judge Fred Slaughter this May allowed the case to proceed.

Slaughter rejected arguments in Newport Beach’s motion to dismiss that Murchison’s claims were barred by the statute of limitations and that the ordinance does not violate the First Amendment because it regulates “teaching activity,” not speech.

Slaughter reasoned that Murchison’s “constitutional claims are not time-barred under the continuing violation doctrine.”

That doctrine says that if a government law or policy continually harms someone the statute of limitations can be renewed.

 

“Defendant argues that the constitutional claims are time-barred because

Plaintiff knew about the Ordinance since 2016,” Slaughter wrote. “Plaintiff responds that the constitutional claims are timely because the enforcement of the Ordinance in May 2024 started a new limitations period. The court agrees with Plaintiff. Rather than asserting claims outside the limitations period, Plaintiff is challenging [Defendant’s] ongoing enforcement of the Ordinance that continues to prohibit him from providing surf and [stand-up paddleball] lessons. Because Plaintiff alleges that Defendant enforced the Ordinance in May2024, which is well within the two-year limitations period, Plaintiff sufficiently alleges a continuing violation that makes the constitutional claims timely.”

Slaughter also ruled that the ordinance apparently violated Murchison’s First Amendment rights.

“The court finds that Plaintiff adequately alleges that the Ordinance restricts Plaintiff’s speech. As Plaintiff points out, the Ordinance prohibits people from conducting or performing any instructional activity in Defendant’s beaches without a written agreement. Instructional activity includes educational or recreation programs or activities for monetary consideration, encompassing Plaintiff’s surfing and SUP [stand-up paddleball] lessons. Because the Ordinance restricts Plaintiff’s ability to provide paid surfing and SUP lessons, the court finds Plaintiff adequately alleges that the Ordinance restricts Plaintiff’s speech.”

To buttress his argument, the judge  quoted from a 2020 Ninth Circuit Court of Appeals decision that said, “There can be little question that vocational training is speech protected by the First Amendment.”

But Slaughter rejected Murchison’s claim that the ordinance violated the Fourteenth Amendment guarantee of equal protection. Murchison had argued that because the law restricts paid lessons on the beach but not unpaid lessons it was being applied unevenly and therefore violated the right to equal protection.

Slaughter ruled that Newport Beach had articulated the required “rational basis” for the classifications the law was making.

“Applying the rational basis standard, Defendant’s restrictions on who can provide instructional activity for monetary consideration is rationally related to legitimate government interest of promoting safety and public welfare, and limiting Defendant’s liability for injuries on its properties.”

But Slaughter accepted the lawsuit’s argument that Newport Beach had violated anti-trust law by establishing an illegal monopoly by shutting so many people out from giving paid lessons on the beach.

“In support of his antitrust claims, Plaintiff alleges the following: at least 13 other instructors have tried to obtain an agreement with Defendant to provide surfing and SUP lessons since 2012 but Defendant only has agreements with three companies, Defendant excludes competitors from the market for surfing and SUP lessons. Defendant harms instructors and the public by depriving them of open competition in the market for surfing and SUP lessons,  and the Ordinance limits the market for surfing and SUP [stand-up paddle board] by refusing to enter into agreements with other instructors.  Because Plaintiff alleges harm to other instructors in the market for surfing and SUP lessons, the court finds that Plaintiff sufficiently alleges harm to competition.

Murchison had also argued in the lawsuit that the ordinance violated the California Coastal Act because Newport Beach did not get permission from the California Coastal Commission to restrict access to the beach through new  “zoning and development,” as the Act requires.

But Slaughter rejected his argument that the ordinance amounted to a “development” under the Act.

“The court finds that Plaintiff fails to adequately allege a violation of the Coastal Act.

Defendant argues that Plaintiff fails to allege sufficient facts to support its proposition that the Ordinance is a development.  Plaintiff responds that the Ordinance qualifies as a development under the Coastal Act because it restricts instructors’ access to the beaches.  The court agrees with Defendant. Plaintiff fails to cite authority, and the court finds no authority, supporting the proposition that limiting instructors’ access to a beach constitutes a development that changes “the density or intensity of the use of land” or the “intensity of use of water, or of access thereto.”

So Murchison is proceeding with the First Amendment and antitrust claims. The next steps in the lawsuit are depositions and other discovery. But nothing has been scheduled yet.

He told the California Globe today that he had been expecting a favorable ruling from the judge against what he called the “tyrannical” government of Newport Beach.

“Obviously,  the [decision] was redeeming. I know what I have been doing has been right along and the city’s enforcement of an illegal statute will be proven in the court of law. I hope  other businesses will stand up as well and not be bullied  by this city.”

“Justice has prevailed and will continue to do so.”

Pacific Legal Foundation lawyer Caleb Trotter expressed similar sentiments via email.

“We are thrilled—but not surprised—that the court allowed the case to proceed,” Trotter said. “Prohibiting surf instructors from teaching others how to surf is a straightforward restriction on speech, and Newport Beach will now be held to a hefty standard to attempt to justify its ordinance. Likewise, we are pleased that the court recognized that limiting competition for surf lessons to a select few of city-approved vendors poses important antitrust questions and we look forward to proving our case.”