Reza v. Pearce et al

Filing 98

ORDER granting 87 Pearce's Motion for Summary Judgment. The clerk shall enter final judgment. Signed by Judge Frederick J Martone on 12/2712.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Salvador Reza,
Plaintiff,

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vs.

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Russell Pearce,
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Defendant.
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No. CV-11-1170-PHX-FJM
ORDER

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I. Background

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Plaintiff is a Mexican-American and vocal critic of former Arizona State Senate

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President Russell Pearce. On February 22, 2011, plaintiff attended a public hearing at the

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Arizona State Senate building on a controversial immigration bill sponsored by Pearce.

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Because the Senate hearing room was filled to capacity, plaintiff and other members of the

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public were placed in an overflow room across the hall from the hearing where they could

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watch the proceedings via closed-circuit television. During the hearing, both opponents and

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supporters of the legislation in the overflow room could be heard to cheer and boo, causing

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disruption in the Senate hearing room. DSOF ¶ 22; PSOF ¶ 65. Members of the Senate

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notified Sergeant-at-Arms Joe Kubacki about the disturbances. DSOF ¶ 23. Kubacki

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informed the crowd that Senate rules of decorum prohibit applause, cheers, and boos and

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asked them to remain quiet. DSOF ¶ 25. Kubacki alleges that in response to his request,

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plaintiff stood up and began to clap in a slow, rhythmic fashion, while other members of the

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crowd began to clap with him. DSOF ¶¶ 26-27. Plaintiff denies this allegation and claims

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that that he was not disruptive during the hearing. PSOF ¶¶ 64, 76.

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Kubacki reported the disturbances to Pearce. As President of the Senate, Pearce had

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the authority and obligation to maintain order and decorum so that the Senate could perform

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its business. DSOF ¶¶ 35, 36. Pearce instructed Kubacki to “do what he had to do” to

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maintain order, including ejecting disruptive individuals. DSOF ¶ 31. Kubacki advised

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Pearce that it would be best to keep the disturbances to a minimum and finish the hearing

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given the time of night, the agitation of the protesters, and the fact that the hearing was

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almost over. Kubacki did not want the situation to escalate. Pearce agreed and no one was

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ejected. DSOF ¶¶ 32-34.

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After the hearing, Pearce instructed Officer Trapp to identify and photograph the

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offenders from the overflow room and to deny them entrance to the Senate Building because

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of their disorderly and disruptive behavior. DSOF ¶ 37. Pearce asserts that when he gave

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Officer Trapp this instruction, he did not know that plaintiff was among those in attendance.

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DSOF ¶ 38.

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Two days later, on February 24, 2011, plaintiff entered the State Senate building to

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meet with Senator Steve Gallardo to discuss pending legislation. Plaintiff was informed by

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Officers Trapp and Burton that “by order of Senate President Russell Pearce he was no

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longer allowed inside the Arizona State Senate building” due to “disorderly and disruptive

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behavior.” Compl. ¶ 11. Plaintiff was eventually arrested for trespassing, handcuffed, and

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transferred to the Maricopa County Jail where he remained for about 5 hours. Plaintiff has

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not been prosecuted for trespassing.

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The following day Pearce released a public statement regarding the recent disruptions

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at the Senate building. DSOF ¶ 48. He noted that during the early part of February 22, 2011,

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protesters interrupted a news conference held by Senator Krysten Sinema, causing Senator

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Sinema to fear for her safety. Capitol police arrested four people for disorderly conduct

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during the incident. DSOF ¶¶ 13-15. It was against this backdrop that Pearce responded to
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the disruptions from the overflow room later that same day. In his statement, Pearce noted

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that these incidents not only interfered with Senate business but also presented “potentially

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dangerous situations.” DSOF ¶ 49. He warned that in order to fulfill his responsibility to

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secure the Senate building, “we will be much more vigilant over misconduct by anyone

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visiting this building.” DSOF, ex. 1.1..

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Three weeks later, on March 14, 2011, Pearce notified the Senate of new rules

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concerning disruptions to Senate business. He explained that the first incident of disruption

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would result in a two-week exclusion from the Senate building. A second disruption would

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result in a 60 day exclusion, and finally a “pattern of disorderly or disruptive conduct” would

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result in an indefinite exclusion. DSOF ¶¶ 52-53. There is no claim that plaintiff was denied

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access to the Senate building on any day other than February 24, 2011.

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Plaintiff filed this § 1983 action alleging that Russell Pearce prohibited him from

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entering the Senate building not because of disruptive behavior, but because of his public

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criticism of Pearce and his Mexican ancestry. Compl. ¶ 29. He denies that he was disruptive

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during the February 22nd hearing. Therefore, plaintiff contends that there was no valid

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reason to prohibit him from entering the Senate building and that doing so violated his clearly

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established rights under the First Amendment.

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We now have before us defendant’s motion for summary judgment (doc. 87),

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plaintiff’s response (doc. 96), and defendant’s reply (doc. 97). Pearce argues that he is

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entitled to qualified immunity because under his obligation as Senate President to maintain

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order and decorum he properly restricted plaintiff from the Senate building “because Reza

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was a constant source of disruption and blatantly disregarded Senate rules and requests to

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maintain order and decorum within the Senate Building.” Motion at 1.

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II. Level of Scrutiny

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The “First Amendment does not guarantee access to property simply because it is

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owned or controlled by the government.” U.S. Postal Serv. v. Council of Greenburgh Civic

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Assocs., 453 U.S. 114, 129, 101 S. Ct. 2676, 2685 (1981).

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Constitution leaves States and governmental units powerless to pass laws to protect the
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“[N]o mandate in our

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public from the kind of boisterous and threatening conduct that disturbs . . . public and other

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buildings that require peace and quiet to carry out their functions.” Gregory v. City of

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Chicago, 394 U.S. 111, 118, 89 S. Ct. 946, 950 (1969) (Black, J., concurring).

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When assessing First Amendment rights to engage in protected speech on government

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property, we first identify the nature of the forum, “because the extent to which the

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Government may limit access depends on whether the forum is public or nonpublic.”

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Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S. Ct. 3439,

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3446 (1985). Government property is classified into three categories. First, in traditional

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public forums, such as public streets and parks, “any restriction based on the content of the

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speech must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve

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a compelling government interest.” Pleasant Grove City v. Summum, 555 U.S. 460, 469,

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129 S. Ct. 1125, 1132 (2009). Second, government entities create “designated public

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forums” when “government property that has not traditionally been regarded as a public

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forum is intentionally opened up for that purpose.” Id. Speech restrictions in a designated

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public forum “are subject to the same strict scrutiny as restrictions in a traditional public

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forum.” Id. Third, a government entity can establish a “limited public forum” by opening

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property “limited to use by certain groups or dedicated solely to the discussion of certain

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subjects.” Id. at 471, 129 S. Ct. at 1132. The government may impose restrictions on speech

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in a limited public forum “that are reasonable and viewpoint-neutral.” Id.

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It is undisputed that the Senate Building is not a traditional public forum such as a

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street or sidewalk where the public has essentially unrestricted opportunity to engage in

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public discourse. Similarly, there is no plausible claim that the State government has

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intentionally designated the Senate Building as “a place or channel of communication for use

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by the public at large for assembly and speech.” Cornelius, 473 U.S. at 802, 105 S. Ct. at

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3449.

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Rather the Senate building is used for assembly and debate by elected representatives

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engaged in lawmaking. While the Senate building is traditionally open to the general public,

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the public’s ability to engage in expressive activity is strictly limited. It is not an open forum
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for public discourse. Nevertheless, a visitor’s silent presence in a Senate hearing can amount

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to protected expressive activity. First Amendment rights “are not confined to verbal

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expression.” Brown v. State of La., 383 U.S. 131, 142, 86 S. Ct. 719, 724 (1966) (silent vigil

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in segregated library held to be protected speech). Therefore, because the Senate building

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is open to the public for some limited expressive activity, we conclude that the Senate

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building is a limited public forum where restrictions on First Amendment rights are

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permissible “as long as the restrictions are ‘reasonable and [are] not an effort to suppress

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expression merely because public officials oppose the speaker’s view.’” Cornelius, 473 U.S.

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at 800, 105 S. Ct. at 3448 (citation omitted). Thus, any restriction of plaintiff’s access to the

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Senate building is constitutionally permissible if it was (1) reasonable, and (2) viewpoint

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neutral. Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001).
III. Qualified Immunity

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Pearce contends that he is entitled to qualified immunity because he did not violate

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a clearly established constitutional right when he prohibited plaintiff from entering the Senate

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building on February 24, 2011. Qualified immunity shields a government official from

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liability for civil damages when his conduct "does not violate clearly established statutory

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or constitutional rights of which a reasonable person would have known." Pearson v.

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Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009) (citation omitted). Deciding

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whether qualified immunity applies requires a two-step analysis that may be completed in

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either order. We decide whether a constitutional right was violated, and if so, whether that

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right was clearly established at the time the events occurred. Mattos v. Agarano, 661 F.3d

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433, 440 (9th Cir. 2011). If either of these inquiries is answered in the negative, the official

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is entitled to qualified immunity. Lacey v. Maricopa County, 649 F.3d 1118, 1131 (9th Cir.

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2011).

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understand that his actions violate that right. Reichle v. Howards, __ U.S. __, 132 S. Ct.

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2088, 2093 (2012).

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A right is clearly established when a reasonable government official would

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Applying the reasonable and viewpoint-neutral level of scrutiny to the restrictions
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placed on plaintiff’s First Amendment rights, we first note that plaintiff’s argument has

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changed since this action was filed. Plaintiff originally alleged in his complaint that his

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speech was restricted because of his Mexican ancestry and public opposition to Pearce.

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When asked to provide evidence supporting this claim, however, plaintiff referred generally

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to the allegations in his complaint and documents “disclosed in [his] initial Disclosure

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Statement.” DSOF ¶ 56. However, bare allegations cannot withstand a properly supported

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motion for summary judgment. A party opposing a motion for summary judgment must set

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forth specific facts showing that there is genuine issue for trial. Fed. R. Civ. P. 56(e).

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Plaintiff did not attempt to further support this claim in his response to the motion for

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summary judgment, and thus has effectively abandoned it. Because plaintiff has failed to

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produce any evidence to support his claim that his rights were violated because of his

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Mexican ancestry or political viewpoint, we conclude that the restriction was viewpoint

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neutral and consider only whether the restriction was reasonable.

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B.

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A restriction on expressive conduct in a limited public forum must be reasonable “in

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the light of the purpose of the forum and all the surrounding circumstances.’” Preminger v.

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Peake, 552 F.3d 757, 765 (9th Cir. 2008) (quoting Cornelius, 473 U.S. at 809, 105 S. Ct. at

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3453) (“Nothing in the Constitution requires the Government freely to grant access to all who

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wish to exercise their right to free speech on every type of Government property without

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regard to the nature of the property or to the disruption that might be caused by the speaker’s

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activities.”). Courts have consistently held that a legislative body’s restriction of the public

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to maintain order and decorum is constitutionally permissible, and thus reasonable. “This

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necessarily include[s] the authority to remove an unruly or disruptive member of the

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audience ‘to prevent his badgering, constant interruptions, and disregard for the rules of

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decorum.’” Green v. Nocciero, 676 F.3d 748, 753 (8th Cir. 2012) (citation omitted).

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Plaintiff asserts that he was not disruptive at the Arizona State Senate on February 22,

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2011, “or at any other time material to this dispute.” Response at 10. Five witnesses who

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observed the Senate hearing in the overflow room all testified that plaintiff did not engage
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in disruptive behavior. PSOF ¶ 74. Plaintiff contends that instead of removing him from the

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public hearing on February 22, 2011, Senator Pearce simply banned him from entering the

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Senate building for any reason for an indefinite period of time. Plaintiff cites Norse v. City

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of Santa Cruz, 629 F.3d 966, 976 (9th Cir. 2010), for the proposition that a legislative body

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may enforce rules of decorum only when an attendee is “actually disturbing or impeding a

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meeting.” Therefore, according to plaintiff, because he was not disruptive, Pearce’s order

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was unreasonable and therefore unconstitutional.

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Even accepting as true that plaintiff was not disruptive, we nevertheless conclude that

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Pearce is entitled to qualified immunity. Qualified immunity “gives government officials

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breathing room to make reasonable but mistaken judgments.” Ashcroft v. al-Kidd, ___ U.S.

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___, 131 S. Ct. 2074, 2085 (2011). It “provides ample protection to all but the plainly

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incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341,

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106 S. Ct. 1092, 1096 (1986).

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The undisputed facts show that Pearce instructed Trapp to identify all individuals in

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the overflow room who were disruptive, making no distinction between supporters and

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opponents of the legislation. Pearce submits the affidavits of Senate Sergeant-at-Arms Joe

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Kubacki and Arizona Department of Public Safety Sergeant Jeff Trapp attesting that plaintiff

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was disruptive during the hearing. Therefore, Pearce believed that plaintiff was one of the

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disruptive members of the crowd. This belief, coupled with the tense atmosphere at the

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Senate building on February 22, 2011, the arrest of protestors earlier in the day, Senator

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Sinema’s expressed fear surrounding the level of protests, as well as the shooting of 18

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people at a political rally in Tucson, Arizona just six weeks earlier, provided an objectively

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reasonable basis for Pearce to conclude that action needed to be taken to protect and preserve

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safety and decorum in the Senate building. Plaintiff presents no evidence to show that he

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was somehow singled out for the disciplinary treatment. Absent such evidence, we conclude

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that Pearce acted in an objectively reasonable manner when he issued the order excluding

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from the Senate Building those individuals who had been disruptive at the February 22nd

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meeting. If plaintiff was mistakenly targeted as a disruptive member of the crowd, “that was
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unfortunate, but it did not violate the First Amendment.” See Green, 676 F.3d at 754. Pearce

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is entitled to qualified immunity.

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IV. Conclusion
IT IS ORDERED GRANTING Pearce’s motion for summary judgment (doc. 87).
The clerk shall enter final judgment.
DATED this 27th day of December, 2012.

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