Warden v. Miranda et al

Filing 126

ORDER denying 99 Plaintiff's Motion for Summary Judgment; granting 101 Defendants' Motion for Summary Judgment; further ordered that all remaining motions 104 , 121 , and 123 are denied. Ordered that the entry of default against the Coalition is set aside. Ordered that the Clerk of the Court shall enter Judgment for the Defendants and against the Plaintiff. Signed by Senior Judge David C Bury on 7/21/2017.(BAR)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Roy Warden,

No. CV-14-02050-TUC-DCB
Plaintiff,

10
11

v.

12

ORDER

Richard Miranda, et al.,

13

Defendants.

14
15

April 10, 2006, was a national day of protest for workers and immigrants’ rights

16

across the United States, and an estimated 12,000-14,000 people marched in Tucson to

17

protest the treatment of immigrants in this country. The march ended in a rally at Armory

18

Park, which was open to all members of the public. The Plaintiff and several associates

19

were counter-protesting that day against illegal immigrants. They went into Armory

20

Park in the midst of the pro-immigrant marchers and burned two Mexican flags while

21

denouncing illegal immigrants. (P’s Response, SOF (Doc. 116) ¶ 6). The crowd of pro-

22

immigration marchers became agitated and violent. According to the Plaintiff, “the ‘pro-

23

raza’ participants rioted in 2006” because of “Plaintiff’s speech.” Id. at ¶ 4) (emphasis in

24

original). The police arrested several marchers, but did not arrest the Plaintiff. He was

25

escorted away from the violent crowd. (Ds’ MSJ, SOF (Doc. 102) ¶2.)

26

Plaintiff filed two law suits arising from the events of that day, CV 07-190 TUC

27

CRP and CV 07-664 TUC DCB. In both, Judgement was entered against the Plaintiff.

28

Following the 2006 “riot,” the May 1st Coalition for Worker and Immigrant Rights

1

(the Coalition/CWRI),1 which organizes the annual May Day march and rally, began

2

applying for and obtaining exclusive use permits for all future May Day rallies. “The

3

Coalition planned to exclude Mr. Warden and any others the Coalition thought did not

4

share [their] peaceful message of worker and immigrants’ rights in order to prevent

5

another disturbance like the one that occurred on April 10, 2006.” (Ds’ SOF at ¶ 5; Ex.

6

C: Miles Decl. ¶ 3 (peacekeeping and security coordinator for the Coalition). In 2010 and

7

2011, Plaintiff filed a lawsuit complaining about being precluded from the May Day

8

Armory Park rally, CV 11-460 TUC DCB (BPV), which was dismissed without leave to

9

amend because the Plaintiff was not diligent in seeking the identity of unknown TPD

10

officers he sought to name.2

11

On April 25, 2014, the Plaintiff filed the Complaint in this case alleging

12

intentional and negligent violations of the First Amendment to the United States

13

Constitution because he was refused access to Armory Park on May 1,3 2012. Plaintiff

14

argues that under Gathright v. City of Portland, 439 F.3d 573 (9th Cir. 2006), the City of

15

Tucson Defendants (the City), pursuant to an exclusive use permit, improperly precluded

16

his entry to the May Day rally. On August 10, 2015, this Court denied a Motion to

17

Dismiss filed by the City, finding the Plaintiff alleged sufficient facts to state his claim,

18

and allowed the case to go forward for disposition on the merits. The parties have

19

completed discovery and file cross motions for summary judgment.

20

The Court denies the Plaintiff’s Motion for Summary Judgement and grants the

21

Defendants’ Motion for Summary Judgment. The Court denies the Defendants’ Motion

22
23
24
25
26

1

The Coalition was sued as an unincorporated association, Fed. R. Civ. P.4(h),
served by publication, id. (e)(1) (Arizona allows service by publication), and was
defaulted for failing to answer. The default does not establish that the Coalition is a jural
entity capable of suing or being sued under Arizona law.
2

27
28

CV 13-283 TUC DCB remains pending before this Court, but it does not involve
claims related to a Coalition May Day rally.
3

Defendants’ Motion for Summary Judgment mistakenly identifies the date as
May 12, 2012. (Doc. 101 at 1.)
-2-

1

to Preclude Witnesses as moot.

2

meritless.

It denies the Plaintiff’s Motion for Sanctions as

3

The Court denies the Plaintiff’s request for oral argument because the parties

4

submitted memoranda thoroughly discussing the law and evidence in support of their

5

positions. The Court finds no material questions of fact in dispute relevant to whether

6

Plaintiff’s First Amendment rights were violated. This is a case where both sides draw

7

different legal conclusions based on essentially the same facts. Oral argument will not

8

aid the court's decisional process which is based on a question of law. See Mahon v.

9

Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999) (explaining that

10

if the parties provided the district court with complete memoranda of the law and

11

evidence in support of their positions, ordinarily oral argument would not be required).

12

For reasons explained below, the Court finds that as a matter of law, Defendants

13

did not violate the Plaintiff’s First Amendment rights nor did they retaliate against him

14

for exercising them.

15

1. Standard of Review for Summary Judgment

16

On summary judgment, the moving party is entitled to judgment as a matter of law

17

if the Court determines that in the record before it there exists “no genuine issue as to

18

material fact.” Fed.R.Civ.P. 56(a). When considering a summary judgment motion, the

19

court examines the pleadings, depositions, answers to interrogatories, and admissions on

20

file, together with affidavits or declarations, if any. Fed. R. Civ. P. 56(c). The Plaintiff

21

incorporates by reference arguments and evidence presented previously during briefing of

22

Defendants’ Motion to Dismiss. See (P’s MSJ (Doc. 100) at 2, ¶ 2 (incorporating

23

Response to MD (Doc. 22)). While a party may call the Court’s attention to anything

24

contained in a previous pleading or motion by incorporation by reference, LRCiv.

25

7.1(d)(2), “‘Judges are not like pigs, hunting for truffles buried in briefs,’” Christian

26

Legal Soc. Chapter of Univ. of Calif. V. Wu, 626 F.3d 483, 488 (9th Cir. 2010) (quoting

27

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (quoting United States v Dunkel,

28

-3-

1

927 F.2d 955, 956 (7th Cir. 1991) (per curiam)). Therefore, broad generalized references

2

do not suffice. Any incorporation by reference must be made specifically and distinctly.

3

Accordingly, the Court considers Plaintiff’s incorporation by reference of this

4

Court’s findings and conclusions of law made in the Order denying Defendants’ Motion

5

to Dismiss.

6

determinative of the cross motions for summary judgment.

7

Defendants’ Motion to Dismiss, this Court was applying a liberal pleading standard. Fed.

8

R. Civ. P. 8, (Order (Doc. 29) 4-5). The Court considered only whether the Plaintiff

9

alleged facts which plausibly suggested a constitutional violation. The Court took the

10

facts alleged by the Plaintiff as being true, even if doubtful, and construed them in the

11

light most favorable to the non-moving, the Plaintiff. Id.

See (P’s MSJ (Doc. 100) at 3-7, ¶¶ 4.A-H.) They are, however, not
When considering the

12

The assumptions made by the Court when denying Defendants’ Motion to Dismiss

13

are not evidence. See e.g., (P’s MSJ (Doc. 100) at 7 ¶ 4.H, 5 (citing Court’s assumptions

14

made related to procedures for permit approval as “correct”). A motion to dismiss is filed

15

prior to discovery, whereas summary judgment comes after the parties have marshalled

16

the evidence through discovery to support a claim. The Defendants correctly explain that

17

on summary judgment, the parties must “put up” their evidence. (Ds’ Reply (Doc. 119)

18

at 2.)

19

The moving party bears the initial burden of demonstrating the absence of a

20

genuine issue of material fact, but is not required to support its motion with affidavits or

21

other similar materials negating the opponent’s claim. Celotex Corp. v. Catrett, 477 U.S.

22

317, 323-325 (1986). In determining whether to grant summary judgment, the Court

23

views the facts and inferences from these facts in the light most favorable to the non-

24

moving party. Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 577 (1986).

25

The mere existence of some alleged factual dispute between the parties will not

26

defeat an otherwise properly supported motion for summary judgment; the requirement is

27

that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.

28

242, 247-48 (1986). A material fact is any factual dispute that might affect the outcome

-4-

1

of the case under the governing substantive law. Id. at 248. A factual dispute is genuine if

2

the evidence is such that a reasonable jury could resolve the dispute in favor of the non-

3

moving party. Id.

4

The moving party is under no obligation to negate or disprove matters on which

5

the non-moving party bears the burden of proof at trial. Id. at 325. Rather, the moving

6

party need only demonstrate that there is an absence of evidence to support the non-

7

moving party's case. Id. If the moving party meets its burden, it then shifts to the non-

8

moving party to "designate 'specific facts showing that there is a genuine issue for trial.'"

9

Id. at 324 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the party opposing a motion

10

for summary judgment cannot rest upon mere allegations or denials in the pleadings or

11

papers. Anderson, 477 U.S. at 252. The non-moving party must "do more than simply

12

show that there is some metaphysical doubt as to the material facts." Matsushita, 475

13

U.S. at 586. "The mere existence of a scintilla of evidence ... will be insufficient; there

14

must be evidence on which the jury could reasonably find for the [non-moving party]."

15

Anderson, 477 U.S. at 252.

16

Here, because the parties file cross motions for summary judgment, both must “put

17

up or shut up.” (Ds’ Reply (Doc. 119) at 2 (quoting Harney v. Speedway Super-America,

18

526 F.3d 1099, 1104 (7th Cir. 2008)).

19

The Supreme Court’s trilogy of cases, cited above, opened the door for the district

20

courts to rely on summary judgment to weed out frivolous lawsuits and avoid wasteful

21

trials. Rand v. Rowland, 154 F.3d 952, 956 -957 (9th Cir. 1998);10A Charles A Wright,

22

Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, § 2727, at 468

23

(1998). As explained in Celotex: "the plain language of Rule 56(c) mandates the entry of

24

summary judgment, after adequate time for discovery and upon motion, against a party

25

who fails to make a showing sufficient to establish the existence of an element essential

26

to that party's case, and on which that party will bear the burden of proof at trial."

27

Celotex, 477 U.S. at 322. The Judge’s role on a motion for summary judgment is not to

28

-5-

1

determine the truth of the matter or to weigh the evidence, or determine credibility, but to

2

determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 252.

3

2. Plaintiff’s Motion for Summary Judgment

4

The Exclusive Use Permit

5

Plaintiff argues that “on March 14, 2012, Pancho Medina, acting under the

6

direction of Isabel Garcia4 and working on behalf of Defendant-in-Default May 1st

7

Coalition [CWIR], wrote a letter to Peg Weber and Fred Gray, employed by Tucson City

8

Department of Parks and Recreation, requesting use of Armory Park on May 1st 2012 to

9

celebrate “International Workers Day.” (P’s MSJ, SOF (Doc. 100-2) ¶ 14, Ex. 3: Medina

10

3/14/2012 letter)

11

“On March 19, 2012 Pancho Medina, . . . wrote a letter to Defendants Fred Gray

12

and Reenie Ochoa, employed by Defendant Tucson City Department of Parks and

13

Recreation, further explaining the purpose of the Exclusive Use permit was to “prohibit

14

people from entering the park wanting to disrupt [and] incite violence.” Id. ¶ 19 (quoting

15

Ex.6: Medina 3/19/2012 letter).

16

Plaintiff alleges that “Defendants Rankin, Miranda, Judge, Gray and Ochoa, and

17

other Tucson City Officials conferred and came to a decision to grant an ‘Exclusive Use

18

Permit,’ as per Tucson City Code 21-4(a)(b) (6) and Tucson City Code Section 21-

19

3(7)(4), which unlawfully authorized Defendant Tucson May 1st Coalition for Worker

20

and Immigrant Rights to bar Plaintiff’s entry into Armory Park on May 1, 2012, even

21

though Defendants Rankin, Miranda, Judge, Gray and Ochoa knew such practice was a

22

violation of the law regarding “exclusive use permits” as set forth in Gathright and as

23

stated by Defendant Rankin in his April 12, 2006, memo to Tucson City Manager Mike

24

Hein.” Id. ¶ 21 (citing Warden Depo. (Doc. 100-1) at 10); (P’s MSJ, Ex. 1 (Doc. 100-2)).

25
26
27
28

4

Isabel Garcia is not a Defendant in this case and allegations against her are not
relevant to the issue of whether or not the City Defendants and/or the Coalition violated
the Plaintiff’s constitutional right to free speech. In summarizing the facts alleged by the
Plaintiff, the Court omits this repetitive charge.
-6-

1

On March 26, 2012, Defendant Ochoa confirmed the May 1, 2012, Armory Park

2

reservation for a “facility rental” in a letter sent to Medina.

3

Reservation Confirmation 3/26/2012.

Id. ¶¶ 20-22, Ex 7:

4

On April 27, 2012, Defendant Ochoa sent an email to Tucson City Attorney

5

Dennis McLaughlin and Defendants Mike Rankin & Lisa Judge regarding the May 1st

6

Coalition Exclusive Use Permit, agreeing “it looks fine.” Id. ¶ 22, Ex. 8. The email

7

included “a copy of (1) an April 27, 2012 letter (aka “Exclusive Use Permit”) and (2) a

8

map of the designated area in Armory Park covered by the Exclusive Use Permit.” Id. ¶

9

23, Ex. 8: Fax cover sheet.

10

The “Exclusive Use Permit Letter” stated Defendant Gray (1) had reviewed

11

Medina’s request, (2) had discussed the application with Tucson Parks and Recreation

12

staff, the Tucson Police Department and the City Attorney, and (3) further instructed

13

Medina “it will be your responsibility to monitor access (and) in the event that you wish

14

to deny someone access, or request someone leave the designated ‘exclusive use’ area, it

15

will be your responsibility to tell them to do so. Should anyone refuse your request you

16

would need to contact Tucson Police Department staff on site via 911.” (P’s MSJ (Doc.

17

100) at 9-10 (citing Ex. 9 (Doc. 100-2): 4/27/2012 Excusive Use Permit letter.

18
19
20

The “Exclusive Use Permit Letter” dated April 27, 2012, was “cc’d” to
Defendants Miranda, Rankin, Judge, and Ochoa. Id.
The May 1, 2012, Rally

21

“On May 1, 2012, Defendants McCarthy, Sayre and Lopez, following the identical

22

process TPD officers used from 2008-2010, (1) positioned themselves at the entrance to

23

Armory Park, (2) were already in place, and (3) did block Plaintiff when he attempted to

24

enter to speak on matters of community concern.” Id. at 10 (citing SOF (Doc. 100-2) ¶¶

25

28, 33, (Warden Depo. (Doc. 100-1) at 12.)

26

These procedures included: “Sometime prior to May 1, 2012 Defendant Tucson

27

City Employees Ron Odell, Diane Salyes, Paul Patterson, Eric Hickman, Anne Beecroft,

28

Anabel Teran, Bellamy Mong, Brian Cobb, Clas Leighton, Marco Alcantar, Ernesto

-7-

1

Valarde, Andy Vera and Jose Gomez, attended a “Civics Affairs Meeting” and met with

2

Pima County Government employees Melissa Loeschen, Nina Armstrong, and Jim Faas,

3

and Defendant-in-Default CWIR members Paul Teitelbaum, Jon Miles, and Pancho

4

Medina and formulated a plan to deny Plaintiff entry into Armory Park on 31 May 1,

5

2012. (P’s Response to Ds’ MSJ, SOF (Doc. 116-1) at ¶ 33p, Ex. 21 (15-252COT0026):

6

April 10, 2012 Civic Meeting Sign-up sheet).

7

Sometime in the early morning of May 1, 2012 just prior to the rally in Armory

8

Park, Defendants McCarthy, Sayre and Lopez attended a “command briefing” with other

9

high ranking Tucson Police and City Officials, whose identities are unknown, and

10

formulated a plan to allegedly: (1) support the political objectives of Defendant-in-

11

Default CWIR and (2) violate Plaintiff’s First Amendment rights later that day in Armory

12

Park, in spite of the “Rankin Letter” dated April 8 12, 2006 which, in sum and substance,

13

stated, “keeping Warden out of Armory Park was illegal”. Id. ¶ 33q, (Warden Affid.

14

(Doc. 116-5) ¶ 54).

15

“Thus; on May 1, 2012, Defendants McCarthy, Sayre and Lopez, acting in

16

accordance with the plans described in subsection q above, (1) positioned themselves at

17

the entrance to Armory Park, (2) were already in place, and (3) did block Plaintiff when

18

he attempted to enter Armory Park to attend a public meeting on matters of community

19

concern. Id. ¶ 4, (Warden Affid. (Doc. 116-5) ¶ 55).

20

The Plaintiff submits that the rally was open to the public, including being

21

advertised by a flyer as: an “open to all community members who share our commitment

22

to social justice and peace.” (P’s Response to Ds’ MSJ, SOF (Doc. 116-2), Ex. 2.) He

23

admits, however, that the area was fenced, (P’s MSJ, SOF, Warden Depo. (Doc. 100-3) at

24

18), and that rally organizers were positioned at the entrance and kept him from entering

25

the rally, (Ds’ MSJ, SOF (Doc. 100-3): Warden Depo. at 2).

26

According to the Plaintiff, it “was announced as a public meeting, where the

27

public will get together and discuss the issues regarding workers’ rights and immigrants’

28

rights.” (Ds’ MSJ, SOF (Doc. 100-3): Warden Depo. at 22.) It was a private event held

-8-

1

in a public forum, free and open to the public, who just like him wanted to communicate

2

with one another about these topics. He argues that he did not ask the Coalition to allow

3

him to participate in the rally as a speaker, but merely wanted to communicate to the rally

4

attendees his views regarding illegal immigration. (P’s Resp. to Ds’ MSJ (Doc. 116) at

5

9-10.)

6

The Plaintiff misstates the evidence.

The rally announcement was not an

7

invitation to a public meeting; the Coalition invited the public to a march and rally “that

8

[was] free and open to all community members who share[d] [the Coalitions’]

9

commitment to social justice and peace.” (P’s Resp., SOF (Doc. 116-2): Ex. 2.) The

10

Plaintiff misrepresents his desire to participate as being non-confrontational, asserting he

11

did not go to “protest and oppose” them but to communicate on shared worthy ideals of

12

civil liberties and human rights, (Ds’ MSJ, SOF (Doc. 100-3): Warden Depo. at 22); (D’s

13

Response (Doc. 116) at 7 ¶ 10), but he admits to stark disagreements with the leaders of

14

the rally, and admits that he wanted to exercise his right to free speech to tell the crowd at

15

the rally their leaders had lied to and deceived them because illegal immigration exploits

16

and impoverishes Mexicans for the financial benefit of others, including the Defendants,

17

(P’s Resp. to D’s MSJ, SOF (Doc. 116-1) ¶¶ 7-15). The Court concludes that the

18

Plaintiff, by his own admission, sought to attend the rally to speak as a counter-protestor

19

against illegal immigration.

20

The Plaintiff seeks summary judgment under Gathright because a private event

21

held in a public forum, free and open to the public, does not transform the nature of free

22

speech under the First Amendment.

23

violated because the City Defendants authorized, pursuant to City ordinances and permit,

24

the Coalition to exclude him from the rally, and the City Defendants further violated his

25

rights by enforcing the Coalition’s decision to exclude him from the rally.

26

He alleges his First Amendment rights were

“In Gathright, the plaintiff sued the City of Portland alleging that his free speech

27

rights were violated by a city ordinance prohibiting any person from unreasonably

28

interfering with a permittee’s use of a public park. On multiple occasions, Portland

-9-

1

police officers forced Gathright, a preacher, to leave open [public] events he attended

2

because Portland police enforced the right of permit holders sponsoring an event to evict

3

any member of the public who espoused a message contrary to the permit holder.”

4

(Order (Doc. 29) at 6 (citing Gathright, 439 F.3d at 575). The Ninth Circuit applied the

5

reasonable time, place, and manner test for speech restrictions in a public forum

6

established in Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), and concluded

7

that the City infringed Gathright’s First Amendment rights because Portland’s ordinance

8

and enforcement policy was not narrowly tailored to serve a significant interest5 in

9

protecting the free speech rights of those who have obtained permits to use public land

10

for events open to the public. Gathright, 439 F.3d at 577; see also Dietrich v. John

11

Ascuaga’s Nugget, 548 F.3d 892 (9th Cir. 2008) (following Gathright and finding First

12

Amendment violation where police removed a political volunteer from public sidewalk,

13

reserved by private party, the Nugget, as a space for rib cook-off, free and open to the

14

public, following a complaint from the Nugget).

15

Plaintiff also seeks summary judgment on his claim of retaliation. Plaintiff alleges

16

that he “has publicly excoriated” the City Defendants Rankin and Miranda, and in

17

retaliation for his speaking out against them they excluded him from the Armory Park

18

rally. (P’s Resp. to Ds’ MSJ, SOF (Doc. 116-1) ¶¶20-21) (emphasis in original).

19

3. Defendants’ Cross Motion for Summary Judgment

20

The Court finds no substantive difference between the relevant facts alleged by the

21

parties, but they disagree regarding their legal conclusions, and the Defendants also

22

object to some of Plaintiff’s alleged facts as not supported by the evidence. Specifically,

23

he offers only a self-serving affidavit and declaration to support his views regarding the

24

plans allegedly formulated between the Defendants. For example, there is no other

25

evidence to support Plaintiff’s assertion that the City planned to support the political

26

objectives of the Coalition or to knowingly violate the Plaintiff’s First Amendment rights.

27
5

28

The Court in Gathright accepted, without deciding, that the city had a significant
interest in protecting free speech of permittees. Gathright, 439 F.3d at 577. This Court
assumes the same.
- 10 -

1

The Plaintiff makes these allegations in respect to the Civic Event meeting held on April

2

10, 2012, to coordinate various community events with members of both the private and

3

public sectors, (Ds’ Resp. to P’s MSJ, SOF (Doc. 116) ¶ 26), and in respect to what the

4

Plaintiff calls the “command briefing” held on the morning of the rally, id. ¶ 60-63. His

5

assertion that Defendants’ planned to violate his First Amendment rights is based on his

6

assertion that Gathright and Rankin’s April 12, 2006, Gathright memo applied to May

7

Day rally. The Court does not need to resolve whether the City supported the Coalition’s

8

political goals. What is important is whether Gathright applies to the May Day rally.

9

Defendants admit that they planned to enforce the exclusive use permit issued to the

10

Coalition by preventing the Plaintiff from entering the May 1, 2012, rally at Armory

11

Park.

12

Tucson Police Lt . Sayre explains that “[t]he Coalition staffed the entrances to the

13

exclusive use area with peacekeepers,6 including [activist] Jon Miles, who was in charge

14

of security for the May 1, 2012, event, and [Sayre] coordinated with them for a peaceful,

15

non-violent event. Mr. Miles was in direct contact with police in the event disruptive

16

persons showed up at the exclusive use area that he wanted removed.” (Ds’ MSJ, SOF

17

(Doc. 102), Ex. D: Sayre Decl. ¶ 5.) On May 1, 2012, when Plaintiff appeared at Armory

18

Park, he was informed by Lt. Sayre, Lt. Lopez, and Captain McCarthy, that the permit

19

holders would not allow him entry into their exclusive use area of Armory Park. Id. ¶ 7.

20

Police allowed the Plaintiff to, and he did, counter-protest with a bull horn on the

21

sidewalk across the street from the rally entrance for several minutes as marchers walked

22

past him. Plaintiff’s message was against open borders and not shared by the protesters

23

at the Armory Park rally. “No members of the Tucson Police Department interfered with

24

Mr. Warden’s counter-protest and no restrictions were placed upon him.” Id. ¶ 8.

25

Subsequently, Plaintiff attempted to enter into the exclusive use area of Armory

26

Park through one of the entrances. Mr. Miles was present and denied Mr. Warden entry

27
6

28

Jon Miles is an activist, who organizes volunteer “peacekeepers” for marches
and events. He is involved with Derechos Humanos, Veterans for Peace, and Salt of the
Earth Labor College. www.keywiki.org.
- 11 -

1

to the rally. Tucson Police, including Lt. Sayers, “reinformed Plaintiff that he was not

2

permitted entry because the permit holders had exclusive use of areas of the park and did

3

not want him inside.” Id. ¶ 9.

4

Miles had coordinated peacekeeping and security for the May 1 rallies from 2006

5

through May 1, 2012, and was there in 2006 when the Plaintiff entered the park at the end

6

of the march and made comments about Mexicans which Miles perceived to be

7

inflammatory and racist, and Plaintiff burned a Mexican flag.

8

resulting in violence and several arrests by the Tucson Police Department.” (Ds’ MSJ,

9

SOF (Doc. 102-2), Ex. C: Miles Decl. ¶ 2.)

“[A] riot broke out

10

The Coalition obtained exclusive use permits after 2006 for the May 1 rallies in

11

order to exclude the Plaintiff and any others the Coalition believed did not share the

12

Coalition’s belief in peaceful protest for immigrants’ rights. Id. ¶ 3. Mr. Miles obtained,

13

and members of the Coalition installed, orange snow fencing on the borders of the area of

14

the park outlined by the permit.

15

monitored entrances, permitted only those persons sharing our message of worker and

16

immigrant rights to enter Armory Park during our rally.” Id. ¶ 4.

“The Coalition, with the aid of the fencing and

17

On May 1, 2012, Miles reportedly saw the Plaintiff outside the rally area as

18

marchers arrived at the park. The Plaintiff was delivering his message via bull horn to

19

the members of the May 1 Coalition march. His message was not consistent with the

20

Coalition’s message of worker and immigrant rights.” Id. ¶ 6. According to Miles, he

21

told the Plaintiff “he was not welcome inside Armory Park,” and the Defendant police

22

officers informed the Plaintiff he was not allowed inside Armory Park because the May 1

23

Coalition had an exclusive use permit for the park. Id. ¶ 7. The Plaintiff left. Id.

24

The Defendants argue that Gathright does not control the May 1, 2012, rally

25

because the Coalition secured an exclusive use permit as compared to the May 1, 2006,

26

rally, which was held pursuant to a general permit reserving Armory Park for a rally open

27

to the public. In other words, Gathright controlled the 2006 rally. In 2006, Plaintiff

28

could not be excluded, and was not excluded, from the rally. Thereafter, including in

- 12 -

1

2012, the Coalition obtained exclusive use permits for their annual rallies, fenced the

2

rally area, controlled access to the rally, and limited it to the community that shared the

3

Coalitions’ vision of worker and immigrant rights.

4

apply to the May 1, 2012, rally.

In other words, Gathright did not

5

The Defendants seek summary judgment as a matter of law under Hurley v. Irish-

6

American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), where the

7

Court held that the state could not require private citizens who organized a parade

8

through public streets to include among the marchers a group imparting a message the

9

organizers did not wish to convey.

The holding turned on the rationale that a parade

10

makes a collective point and is, therefore, expressive. “One who chooses to speak may

11

also decide ‘what not to say,’” id. at 573 (quoting Pacific Gas & Electric Co. v. Public

12

Utilities Comm'n of Cal., 475 U.S. 1, 11, (1986)), and generally “the state may not

13

compel affirmance of a belief with which the speaker disagrees,” id. (quoting West

14

Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943)).

15

Gathright distinguished Hurley, finding a difference “between participating in an

16

event and being present at the same location.” Gathright, 439 F.3d at 577.

17

presence does make one part of the organizer’s message for First Amendment purposes.

18

Gathright, 439 F.3d at 577. Hurley does not extend to circumstances where a speaker in

19

a public forum seeks only to be heard, not to have his speech included or possibly

20

confused with another’s.” Id. at 578. Under Gathright, a private event that takes place in

21

a traditional forum, free and open to the public, does not transform the First Amendment,

22

and speech must be allowed if there is no risk of mistaking it as part of the message being

23

conveyed by the organized event. Id. at 578. But does the Gathright distinction hold

24

when the public event is a political rally?

Mere

25

In the Sixth Circuit, Hurley has been directly applied in the context of a rally. “A

26

public rally is speech to the same extent that a parade is speech.” Sistrunk v. City of

27

Strongsville, 99 F.3d 194, 199 (6th Cir. 1996). “[P]articipating in the rally as a member of

28

the audience is more akin to marching in the parade itself as one of the less visible

- 13 -

1

marchers,” id., as compared to standing along the parade route and protesting, see

2

Mahoney v. Babbitt, 105 F.3d 1452, 1456 (D.C. Cir. 1997) (refusing to extend Hurley to

3

protestors along parade route). In Sistrunk, the court reasoned that “the organizers of the

4

Bush-Quayle rally sought to assemble in order to convey a pro-Bush message to the

5

media by use of pro-Bush speakers and largely pro-Bush attendees.” Id. In the Sixth

6

Circuit, the law is clear that Hurley applies to political rallies. In Sistrunk, the court held

7

that the First Amendment does not require organizers of a political rally to include

8

counter-speech that would alter the message the organizers seek to send to the media and

9

other observers, even if counter-protestors do not otherwise interfere with the rally.

10

Counter-protestors need not be permitted to participate in the rally by expressing

11

discordant views, even where the rally is held in the public town Commons. Id. The City

12

of Tucson relies on Hurley and Sistrunk. See also, Schwitzgebel v. Strongsville, 898

13

F.Supp.1208 (Ohio 1995) (no first Amendment violation were counter-protestors were

14

arrested after ruckus ensued when they held up anti-Bush-Quale protest signs at a Bush-

15

Quale rally); Bishop v. Reagan-Bush ’84 Comm, 819 F.2d 289 (6th Cir. 1987) (finding no

16

First Amendment violation where counter-protestors required to relinquish placards

17

before attending political rally on public commons).

18

Defendants McCarthy, Sayre and Lopez, the Defendant Police Officers, are all

19

entitled to qualified immunity, which shields federal and state officials from money

20

damages unless a Plaintiff can show that the official violated a statutory or constitutional

21

right and that the right was clearly established at the time of the challenged conduct.

22

Ashcroft v. al-Kidd, 563 U.S. 731, 737 (2011). The law must be so clear as to give an

23

officer a “fair and clear warning of what the Constitution requires,” and qualified

24

immunity applies unless “a reasonable officer could not have believed that his actions

25

were lawful.” Id. at 746 (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999). “Qualified

26

immunity gives government officials breathing room to make reasonable but mistaken

27

judgments about open legal questions. When properly applied, it protects ‘all but the

28

plainly incompetent or those who knowingly violate the law.’” Id. at 737 (quoting

- 14 -

1

Wilson, 526 U.S. at 618). In 2012, the law was not clearly established as to whether it

2

violated the First Amendment to prevent a counter-protester from entering an exclusive

3

permit area being used for a political rally. The Court turns to that question.

4

4. The First Amendment

5

The Plaintiff, like the plaintiff in Gathright, “asserts his classic right to preach in

6

the town square.” Gathright, 439 F.3d at 576 (citing Hurley v. Irish–American Gay,

7

Lesbian & Bisexual Group of Boston, 515 U.S. 557, 579 (1995) (“Our tradition of free

8

speech commands that a speaker who takes to the street corner to express his views . . .

9

should be free from interference by the State based on the content of what he says.”)).

10

Pro or anti-immigration speech is political speech, the “primary object of First

11

Amendment protection.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 410-

12

411 (2000) (Thomas, J., dissenting). Armory Park is a traditional public forum, like a

13

public park or street, which since “time out of mind have been used for purposes of

14

assembly, communicating thoughts between citizens, and discussing public questions.”

15

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n., 460 U.S. 37, 45 (1983).

16

The First Amendment provides: “Congress shall make no law . . . abridging the

17

freedom of speech.” First Amendment rights are protected from infringement by state

18

actors under the Fourteenth Amendment. Everson v. Board of Educ., 330 U.S. 1, 8

19

(1947). The extent to which a person has a right to free speech depends on three things:

20

1) whether the speech is protected, 2) the nature of the relevant forum, and 3) the

21

justifications proffered by the government for limiting access to the forum. Cornelius v.

22

NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797 (1985).

23

The Plaintiff relies on Gathright, and the Ninth Circuit’s invalidation of a City of

24

Portland ordinance which made it unlawful for any person unreasonably to interfere with

25

a permittee’s use of a park and allowed permit holders sponsoring a public event to evict

26

any member of the public who so interfered.

27

Amendment for the City to enforce a permittee’s exclusion of a person from an open

28

public event for unreasonable interference because the ordinance could reach protected

- 15 -

The Court held it violated the First

1

speech which any permittee, user, guard or police officer concluded might be

2

unreasonable. Gathright, 439 F.3d at 579-580.

3

Here, the City of Tucson regulations preclude any person in a park from

4

“disturb[ing] or interfer[ing] unreasonably with any person or party occupying any area,

5

or participating in any activity, under the authority of a permit license or reservation.”

6

TCC 21-3(7.4). Further, “a permit, license or reservation for use shall be obtained from

7

the director/district administrator by persons conducting, operating, presenting or

8

managing any of the following activities,” including “the reservation of any park

9

facilities for a certain person or group of persons to the exclusion of others.” TCC 21-

10

4(a)-(b.6).

11

This case does not fit squarely within Gathright, where Gathright sought to speak

12

at events being held pursuant to general permits issued to private organization to hold

13

events open to the public. Here, the Coalition sought and was granted an exclusive use

14

permit, pursuant to TCC 21-4(b.6) to hold a political immigrant-rights and worker’s

15

rights rally to the exclusion of anti-immigrant hate groups and the use of alcohol, drugs

16

and weapons. (Ds’ MSJ, SOF, Ex. F.1 (Doc. 102-2): Medina letter 3/19/2012.)

17

The City granted the permit, with a map designating the exclusive use area, and

18

directives to the permittee that the Coalition was required to monitor access to the

19

exclusive use area, and in the event the permittee wished to deny someone access, or

20

request someone leave the designated area, it was the permittee’s responsibility to do so.

21

“Should anyone refuse [the] request [the Coalition] would need to contact the Tucson

22

Police Department staff on-site via ‘911.’” Id. at Gray letter 4/27/2012. Individuals being

23

asked to leave the exclusive use area would be allowed to remain in the public areas. A

24

disturbance or incident in any other area of the park that disturbs the permittee’s

25

exclusive use would be handled by Parks and Recreation staff or police. Id.

26

Here, the Plaintiff was precluded from entering the May Day rally based on the

27

Coalition’s say-so. Id. at Ex. D (Doc. 102-2): Sayre Decl. ¶¶ 7, 9. To be clear, a permittee

28

like the Coalition, having exclusive use of an area, need not make any finding regarding

- 16 -

1

interference—it is enough to simply want to exclude someone for any reason or no reason

2

at all. The City ordinances and permit procedures reserve enforcement decisions to the

3

discretion of the police. In this case, the City police enforced the exclusive use permit

4

issued to the Coalition to exclude the Plaintiff.

5

It is undisputed the Plaintiff did not enter the rally, did not interfere with the

6

permittee’s exclusive use of the permitted area, and was allowed to counter-protest

7

outside the rally. He was not excluded pursuant to TCC 21-3(7.4), the park regulation

8

prohibiting any person in a park from “disturb[ing] or interfer[ing] unreasonably with any

9

person or party occupying any area, or participating in any activity, under the authority of

10

a permit license or reservation.” There was no determination by either the Coalition or

11

the police that the Plaintiff would unreasonably disturb or interfere with the rally. The

12

Court assumes that the police would constitutionally apply the prohibitions in TCC 21-

13

3(7.4), but its enforcement is not an issue in this case. Here, the Plaintiff was excluded

14

from the rally because the Coalition did not want him there based on his past, present,

15

and intended ongoing future denunciation of illegal immigration.

16

The question in this case is whether the Plaintiff had a First Amendment right to

17

express his views at the time and place reserved exclusively for another event,

18

specifically the Coalition rally which was being held to express pro-immigrant rights and

19

protest treatment of illegal immigrants. In the Sixth Circuit, the question is answered in

20

Sistrunk: no, Hurley applies and “the city may not constitutionally require a permittee

21

organization to include discordant speakers in its expressive activity.” Hurley, 515 U.S.

22

at 198.

23

In the Ninth Circuit, the answer begins with the question of state action. Villegas

24

v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008) (en banc). Relief under

25

42 U.S.C. § 1983 for a constitutional violation exists only if the challenged conduct was

26

performed under color of state law. Shelly v. Kramer, 334 U.S. 1, 13 (1948).

27

generally not a constitutional violation for a police officer to enforce a private entity’s

28

rights.” Id. It is not unconstitutional “‘to exclude others from public property during the

- 17 -

“It is

1

course of a limited, permitted use’” or “‘every picnic, wedding, company outing,

2

meeting, rally, and fair held on public grounds would be subject to constitutional

3

scrutiny.’” Id. (quoting with approval Villegas, 363 F. Supp.2d 1207, 1216 (Cal. 2005)).

4

The Coalition is a private entity, which can only be subject to liability under §

5

1983 “if, though only if, there is such a ‘close nexus between the State and the challenged

6

action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’”

7

Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288,

8

295 (2001) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).

9

There is no evidence to even hint at a close nexus, which depends on factors such as: 1)

10

the organization is mostly comprised of state institutions; 2) state officials dominate

11

decision making of the organization; 3) the organization’s funds are largely generated by

12

the state institutions, and 4) the organization is acting in lieu of a traditional state actor.

13

Id. at 295-99.

14

organizing, managing, and promoting rallies. Id. at 956 (citing United Auto Workers v.

15

Gaston Festivals, Inc., 43 F.3d 902, 907-908 (4th Cir. 1995) (holding festivals not within

16

domain of functions exercised traditionally and exclusively by the government). The

17

Plaintiff tries to make much of the various communications between the Coalition and the

18

City but there is no evidence that the interaction between the two went beyond those

19

necessary to request and issue the permit, and to coordinate rally logistics such as

20

security for the event.7 In Villages, the Ninth Circuit found that even where security

21

efforts were much more comingled, a private permittee was not a state actor simply

22

because of the permit and event related activities. Id. at 955-957. The Coalition is not a

23

state actor, and there is good cause to set aside the default entered against the Coalition

24

for failing to answer. Fed. R. Civ. P. 55(c).

Cities, including Tucson, are not traditionally in the business of

25
26
7

27
28

A conspiracy under 42 U.S.C. § 1985(3) is an agreement between two or more
individuals to deprive a person of some protected right, where on individual acts in
furtherance of the objective of the conspiracy, and causes an actual deprivation of a
constitutional right. In addition to there being no evidentiary support for this claim, it
fails because there is no constitutional violation.
- 18 -

1

For purposes of the parties’ cross motions, the Court assumes there is state action

2

by the City. Their officers, in uniform and on duty, approached Plaintiff, even before the

3

marchers arrived at the rally site, to inform him that the Coalition intended to exclude

4

him.8 When he approached the Coalition-volunteer security officer at the entrance to the

5

rally, the City police did more than just stand by. They told the Plaintiff that they would

6

enforce the Coalition’s decision to bar his entrance, if he tried to enter the rally. The

7

permit instructed the Coalition to call police if a person refused a request to leave; only

8

City police had authority to enforce the permit.9 Villegas, 541 F.3d at 963 (Thomas,

9

dissenting) (finding under similar facts there was no doubt police officers acted under

10

color of law) (citing Traver v. Meshriy, 627 F.2d 934, 938 (9th Cir. 1980) (holding off-

11

duty officer serving as security at bank was acting under color of law when he flashed his

12

badge during arrest).

13

Finding state action exists, the Court must decide whether the City violated the

14

Plaintiff’s First Amendment right to free speech by denying him entry into the May Day

15

rally. Similarly, the question, answered en banc with one judge dissenting, in Sistrunk

16

was whether the First Amendment “prohibits the city from issuing permits to groups

17

seeking to make exclusive use of the Commons for expressive activity during a limited

18

period of time.” Sistrunk, 99 F.3d at 198. The majority in Sistrunk found that the

19
20
21
22
23
24
25
26
27
28

8

Plaintiff complains that the Coalition was told to contact police by 911 but
instead police were on the scene to confront him. The Court finds no constitutional
significance to this fact. It is undisputed that all parties knew: 1) the exclusive use permit
was sought by the Coalition in part to exclude the Plaintiff; 2) he intended to enter the
rally and speak against illegal immigration; 3) the Coalition intended to exclude him, and
4) police would be on-site, and 5 police would be required to enforce the exclusion. This
was a repeat performance since 2007, the year after the May Day 2006 “riot” when the
Coalition began obtaining exclusive use permits for the May Day rally. The Court finds
no reason to require a 911 call.
9

Because the Court finds there is no violation of Plaintiff’s First Amendment
rights, it does not need to reach the question of municipal liability, which under Monell v.
Dep’t of Social Servs. of N.Y., 436 U.S. 658, 690 (1978), requires a municipal policy or
custom to be the moving force behind the constitutional violation. See Villegas, 541 F.3d
at 957-58 (city police annual practice of providing security at festival including removal
of attendees for violations of dress code, not enough), but see Villegas, 541 F.3d at 965
(Thomas, J., dissenting) (triable issue of fact under Monell because little doubt city had
policy of assisting with festival law enforcement, including dress code).
- 19 -

1

Supreme Court suggested in Hurley “that the city may not constitutionally require a

2

permittee organization to include discordant speakers in its expressive activity.” Id.

3

(emphasis in original). The dissenting judge would not have applied, Hurley. In a case

4

of dueling First Amendment rights, the Court will only uphold viewpoint-based

5

restrictions when the regulation is narrowly tailored to promote a compelling state

6

interest, id. at 202 (Spiegel, dissenting) (citing Perry, 460 U.S. at 45), pursuant to an

7

analytical framework that considers: the nature of the relevant forum and the

8

justifications for exclusion, id. at 202 (Spiegel, dissenting) (citing Bishop v. Reagan-Bush

9

’84 Committee, 1987 WL 35970 (6th Cir. May 22, 1987)). The Sixth Circuit took up the

10

question again in Parks v. City of Columbus, 395 F.3d 643 (6th Cir. 2005). In Parks, an

11

evangelical Christian was precluded from proselytizing at a privately sponsored art fair,

12

free and open to the public, which was held pursuant to a non-exclusive block party

13

permit, id. at 647, as compared to the political rally at issue in Sistrunk, which was

14

permitted for the specific use of the Republican organization and its invitees. Unlike

15

Sistrunk, where the court considered the rally to be a collective expressive activity, the

16

court in Parks was hard-pressed to find the art fair actually expressed any particular

17

message, id. at 651. So, Hurley in no way applied.

18

In Parks, the court considered whether the City had the power to convert a public

19

forum, the Commons, into a private forum. The court looked first to the nature of the

20

forum because whether it is public or nonpublic determines the standard for assessing the

21

extent to which the government may limit free speech. Then, the court must determine if

22

the government’s reasons for prohibiting speech satisfy the appropriate standard. Id. at

23

647.

24

Turning first to the nature of the forum, the court explained that “forum analysis is

25

not completed merely by identifying the government property at issue.” Id. at 652. The

26

court “must also look to the access sought by the speaker.” Id. Parks was attempting to

27

exercise his First Amendment right to free speech at an art festival, free and open to all,

28

which was being held on public streets in downtown Columbus, Ohio. Because Parks

- 20 -

1

wanted access, generally, to the entirety of the public property, the streets remained a

2

traditional public forum, notwithstanding the existence of a permit for a block party.

3

State action existed because the permit scheme allowed a permit holder unfettered

4

discretion to exclude from the public forum someone exercising his constitutionally

5

protected rights, with police enforcement. Id. at 653.

6

“‘Nothing in the Constitution requires the Government freely to grant access to all

7

who wish to exercise their right to free speech on every type of Government property

8

without regard to the nature of the property or to the disruption that might be caused by

9

the speaker's activities.’” Id. at 653 (quoting Cornelius, 473 U.S. at 799–800)).

10

“Nevertheless, traditional public fora ‘have been devoted to assembly and debate,

11

[therefore] the rights of the state to limit expressive activity are sharply circumscribed.’”

12

Id. (quoting Perry, 460 U.S. at 45). In traditional public fora, “the state may only enforce

13

a content-based exclusion if actions meet the strictest scrutiny, and therefore must ‘show

14

that its regulation is necessary to serve a compelling state interest and that it is narrowly

15

drawn to achieve that end.’” Id. “On the other hand, ‘the state may also enforce

16

regulations of the time, place, and manner of expression which are content-neutral, are

17

narrowly tailored to serve a significant government interest, and leave open ample

18

alternative channels of communication.’” Id.

19

The court in Parks concluded the preacher’s removal from the art festival was

20

based on the content of his speech, applied the strictest of scrutiny, and found the City

21

had “not offered any interest, let alone a compelling one, to explain why it prohibited

22

Parks from exercising his First Amendment rights in a traditional public forum.” Id. at

23

654.

24

Parks and Sistrunk are important because the Ninth Circuit relied on them in

25

Gathright. It rejected application of Hurley in a Parks type scenario, where Gathright,

26

also an evangelical preacher, sought to preach outdoors to the general public, specifically

27

at privately sponsored, city-permitted events, open to the public. But, this case is not like

28

Parks or Gathright.

This case is like Sistrunk, and Hurley applies. The City may not

- 21 -

1

constitutionally require a permittee organization, like the Coalition, to include discordant

2

speakers in its collectively expressive activity, the May Day rally. Even if Hurley does

3

not apply, this case remains distinguishable from Parks and Gathright.

4

Applying the analytical framework suggested in Parks for considering dueling

5

First Amendment rights, the Court considers the government property at issue, Armory

6

Park, which as previously noted is a quintessential traditional public forum. The Court

7

must also look to the access sought by the Plaintiff to that property. Here, the Plaintiff

8

wants access to that part of Armory Park being used exclusively by the Coalition for the

9

May Day rally. This Court must answer the question: whether the part of Armory Park

10

the Plaintiff seeks to access remains a traditional public forum, notwithstanding the

11

exclusive use permit.

12

If so, strict scrutiny applies because the speech is political and the place is a

13

traditional public forum, the government may restrict speech only as to time, place, and

14

manner and only if the restriction is content neutral, narrowly tailored to achieve a

15

significant government interest, and leaves open ample alternative channels of

16

communication. To pass strict scrutiny, the government must show that its regulation is

17

necessary to serve a compelling state interest and is narrowly drawn to achieve that end.

18

Perry, 460 U.S. at 45.

19

“Permit systems are the embodiment of time, place, and manner restrictions that

20

have long enjoyed the approbation of the Supreme Court.” Kroll v. U.S. Capitol Police,

21

847 F.2d 899, 903 (D.C. Cir. 1988) (citing Heffron v. International Society for Krishna

22

Consciousness, Inc., 452 U.S. 640 (1980); Grayned v. City of Rockford, 408 U.S. 104

23

(1972); Cox v. New Hampshire, 312 U.S. 569 (1941)). “The rights of free speech and

24

assembly . . . do not mean that everyone with opinions or beliefs to express may address a

25

group at any public place and at any time” because “the constitutional guarantee of

26

liberty itself . . . would be lost in the excesses of anarchy.” Cox, 379 U.S. at 554. Courts

27

have found “one of the most important reasons behind allowing for government-

28

sponsored permit systems is to prevent a multitude of individuals with different messages

- 22 -

1

from expressing their views simultaneously, resulting in a cacophony where no one’s

2

message is heard.” Schwitzgebel v. Strongsill, 898 F. Supp. 1208, 1216-1217 (Ohio

3

1995).

4

In Schwitzgebel, the court concluded that the plaintiffs, counter-protestors at a

5

presidential campaign rally for George Bush, did not have First Amendment rights to

6

intrude within an area reserved for another event still in progress where enforcement of

7

the permit system left open ample alternative channels of communication for them.

8

Plaintiffs, “‘presumably would have had a fair shot . . . at obtaining a . . . permit of [their]

9

own’ to broadcast their message in the Strongsville Commons at another time.” Id. at

10

1218 (quoting Hurley, 515 U.S. at 578). Cf, Startzell v. Philadelphia, 533 F.3d 183, 199

11

(3rd Cir. 2008) (finding that for gay rights street festival, held pursuant to a general

12

permit, not an exclusive permit, the First Amendment allowed “government to arrange a

13

public forum ‘so that individuals and groups can be heard in an orderly and appropriate

14

manner,’ which is ample justification to move counter-protestors to preclude interference

15

with permitted event, but still allow them to speak).

16

The City’s permit ordinance, TCC § 21-4(b.6), and its issuance and enforcement

17

of the Coalition’s exclusive use permit passes this strict scrutiny test. The City restricted

18

speech only as to time, place, and manner, and were, therefore, content neutral, narrowly

19

tailored to achieve the significant government interest of ensuring that individuals and

20

groups with differing views can be heard in an orderly and appropriate manner, and left

21

open ample alternative channels for communication. On the day of the rally, the Plaintiff

22

was allowed to speak just outside the rally and along the path of the march. Presumably,

23

the Plaintiff would have been afforded a permit of his own to broadcast his message in

24

Armory Park at another time.

25

If the area in Armory Park, permitted for the exclusive use of the Coalition’s May

26

Day rally, became a limited public forum—then a different less strict standard applies.

27

Limited public fora are public property “limited to use by certain groups or dedicated

28

solely to the discussion of certain subjects.” Pleasant Grove City, Utah v. Summum, 555

- 23 -

1

U.S. 460, 470 (2010) (citing Perry, 460 U.S. at 64 n. 7). In addition to time, place, and

2

manner regulations, the state may reserve a limited public forum for its intended purpose,

3

communicative or otherwise, as long as the regulation on speech is reasonable and not an

4

effort to suppress expression merely because public officials oppose the speaker’s view.

5

Reza v. Pearce, 806 F.3d 497, 503 (9th Cir. 2015) (citing Perry, 460 U.S. at 46). In other

6

words, limitations on speech in limited public fora “‘must be reasonable and viewpoint

7

neutral, but that’s it.’” Id. (quoting Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266,

8

271 (9th Cir. 1995)).

9

The question is whether the permitted rally area at Armory Park remained a

10

traditional public forum on May 1, 2012, or was a limited public forum. The exclusive

11

permit is not dispositive. It is merely some evidence that the City and the Coalition

12

intended the use of Armory Park on May 1, 2012, between 7:00 am and 6:00 pm to be a

13

private event, with access exclusively controlled by the Coalition.

14

A government may not ipse dixit, by magic words destroy a public forum. The

15

Court looks to the nature and character of the event rather than the authority granted

16

under the permit scheme. In other words, the Court applies the “[i]f it looks like a duck,

17

and it walks like a duck, and it quacks like a duck, then it’s probably a duck” test.

18

McMahon v. City of Panama City Beach, 180 F. Supp.3d 1076, 1080, 1096, 1097-1099

19

(Flor. 2016).

20

In McMahon, the court found that a privately sponsored event, the Thunder Beach

21

Motorcycle Rally, which was held in a traditional public park forum, was free and open

22

to the public whereas the Gulf Coast Jam, which was a ticketed event held in the identical

23

part of the same public park, was not. The court explained that “Thunder Beach could

24

have taken steps to designate either the Site or the Thunder Beach event as a more limited

25

forum. . . . Thunder Beach could have barricaded the event and charged admission.

26

Even if it did not charge admission, and merely roped or otherwise demarcated the event

27

as a purely private event (even to which all members of the public were invited), the

28

event might be a limited forum.” Id. at 1099. In McMahon, the court found that a private

- 24 -

1

event that takes place in a traditional public forum, and is free and open to the public,

2

does not transform the nature of the forum during the event for purposes of the First

3

Amendment. Id. at 1099 (citing Gathright, 439 F.3d at 576-577).

4

“Facts matter. It’s not about what permit holders can do, it’s about what they do

5

do.” Id. at 1099 (emphasis in original). “In order to transform a traditional forum into a

6

more limited one, there must be some sort of visible, meaningful distinction setting the

7

event apart from the venue on which it is held. There must be a change in the ‘nature,’

8

‘use,’ ‘characteristics,’ ‘purpose,’ or ‘function’ of the forum.” Id. at 1099-1100 (quoting

9

Bloedorn v. Grube, 631 F.3d 1218, 1233-34 (11th Cir. 2011)) (citing Arkansas Edu.

10

Television Com’n v. Forbes, 523 U.S. 666, 677 (1998); United States v. Frandsen, 212

11

F.3d 1231, 1237 (Fla. 2000)).

12

barricades, barriers, attendants meaningfully limiting egress and ingress, and signs

13

conveying a message to the effect of “private event—no trespassing.” In short, a person

14

should not be able to “choose to walk in to the event just as one could choose to walk to

15

the same location on a given weekend when an event is not being held.” McMahon, 180

16

F. Supp.3d at 1096.

In McMahon, the court suggested the following:

17

Here, the facts reflect that the Coalition sought and obtained an exclusive use

18

permit. The Coalition fenced the perimeter of the rally, they secured the entrance and

19

exit points, they provided their own volunteer security people to control ingress and

20

egress, and to remove unwanted attendees. The Plaintiff points to the Coalition’s public

21

announcement that the event is “free and open to all community members who share our

22

commitment to social justice and peace.” (P’s Reply (Doc. 120-2): May Day march.)

23

Even if the Court ignored that the invitation was limited to those sharing the Coalition’s

24

views, inviting the public, even offering free attendance, is not dispositive. The question

25

is: whether there was some visible, meaningful distinction setting the May Day rally apart

26

from other, free and open to the public, events at Armory Park. The answer is: yes. The

27

public could not just walk up and enter the rally. The Coalition stationed security at the

28

entrances to control access to the rally, including keeping people out like the Plaintiff.

- 25 -

1

Gathright does not apply because the May Day rally was sponsored by a private

2

organization, the Coalition, and was held in a limited public forum, free and open to the

3

Coalition’s invitees: community members who shared their ideals.

4

The Court finds that the issuance and enforcement of the exclusive use permit was

5

a reasonable time, place, and manner restriction on speech, reserving the rally area for its

6

intended purpose. Plaintiff alleges, and the evidence supports, that the City issued and

7

enforced the exclusive use permit related to the May 1, 2012, rally the same as it enforced

8

all exclusive use permits. The permittee was responsible for asking unwanted persons to

9

leave, with police enforcement. The exclusion from the rally was not an effort to suppress

10

expression merely because public officials opposed the Plaintiff’s views. In short, the

11

limitations imposed by the City on Plaintiff’s speech were reasonable and viewpoint

12

neutral.

13

5. Conclusion

14

This Court finds that Hurley applies. The City may not constitutionally require a

15

permittee organization like the Coalition to include discordant speakers in its rally, a

16

collectively expressive activity. Even if Hurley does not apply, that area in Armory Park

17

exclusively permitted for the rally on May 1, 2012, was a limited public forum, which

18

pursuant to a neutral reasonable time, place, and manner regulation, the City reserved for

19

its intended purpose. Even if Armory Park remained a traditional public forum, subject

20

to strict scrutiny, Plaintiff’s speech was subject to a neutral, time, place, and manner

21

restriction, narrowly tailored to achieve the significant government interest in protecting

22

the free speech rights of permittees by ensuring that these individuals and groups, having

23

differing views, can be heard in an orderly and appropriate manner, and the City left open

24

ample alternative channels for communication. There was no constitutional violation of

25

Plaintiff’s First Amendment rights.

26

Plaintiff’s retaliation claim fails. He alleges the Defendants Rankin and Miranda

27

retaliated against him for speaking out at various public civic meetings, exposing the

28

City’s engagement in an alleged “open border policy” and “cronyism.” Since Defendants

- 26 -

1

did not violate Plaintiff’s constitutional rights, there was no improper action taken by any

2

Defendants to chill the Plaintiff’s continuing engagement in any protected activities,

3

including speaking out about the City’s alleged “open border policy” and engagement in

4

“cronyism.” See O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016) (elements of First

5

Amendment retaliation claim include: 1) plaintiff engaged in a constitutionally protected

6

activity, 2) defendant’s actions would chill person of ordinary firmness from continuing

7

to engage in protected activity, and 3) protected activity was a substantial or motivating

8

factor in defendant’s conduct).

9

Accordingly,

10
11

IT IS ORDERED that the Plaintiff’s Motion for Summary Judgment (Doc. 99) is
DENIED.

12
13

IT IS FURTHER ORDERED that the Defendants’ Motion for Summary
Judgment (Doc. 101) is GRANTED.

14
15

IT IS FURTHER ORDERED that all remaining motions (Docs. 104, 121, and
123) are DENIED.

16
17
18
19
20

IT IS FURTHER ORDERED that the entry of default against the Coalition is set
aside.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment
for the Defendants and against the Plaintiff.
Dated this 21st day of July, 2017.

21
22
23
24
25
26
27
28

- 27 -