Blair

dissenting:

Although I concur with much of the majority’s decision, 1 I do not agree that we are constrained by Ringsby Truck Lines v. Western Conference of Teamsters, 686 F.2d 720, 722 (9th Cir.1982), to remand this case to the district court for it to determine in the first instance whether its constitutional determination should be vacated. Rather, I believe that the procedural context of the present litigation is governed by United States v. Munsingwear, 340 U.S. 36 , 71 S.Ct. 104 , 95 L.Ed. 36 (1950) and therefore is completely distinguishable from the typical Ringsby ease, which becomes moot pending appeal as the result of a settlement agreement. Therefore, Ringsby is inapposite. Consequently, I would dispose of the City’s appeal not by returning the proceeding to the dis *1523 trict court for its further consideration. Rather, I would dispose of the City’s appeal by vacating so much of the district court’s judgment as declared California Penal Code § 647(c) unconstitutional, and remand to the district court with instructions to dismiss Blair’s complaint, as Munsingwear requires. 340 U.S. at 39-40 , 71 S.Ct. at 106-07 . Because the majority has declined to do so, I…

Opinion by Chief Judge WALLACE.

Dissent by Judge GARTH.

The City and County of San Francisco (City) and intervenor State of California (State) request us to review a decision of the district court, Blair v. Shanahan, 775 F.Supp. 1315 (N.D.Cal.1991) (Blair I), declaring facially unconstitutional under the First and Fourteenth Amendments a state statute criminalizing aggressive panhandling. Cal.Penal Code § 647(c). That statute provides that anyone “[w]ho accosts other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms” is guilty of a misdemeanor. Id. After he was arrested several times for alleged violations of section 647(c), Blair brought this action, and damages were agreed upon in a subsequent settlement. He now argues that we should dismiss the appeal from the district court’s declaratory judgment for lack of jurisdiction.

The City also asks us to review the district court’s order refusing to vacate a consent judgment entered pursuant to Federal Rule of Civil Procedure 68, which settles Blair’s claim for damages against the City for a sum of $4,000. Because we hold that the district court did not abuse its discretion…