Opinion
No. C 03-4541 CRB.
October 29, 2004
MEMORANDUM AND ORDER
This action arises out of an incident which occurred on October 10, 2002 on the campus of San Francisco State University. Plaintiffs bring suit under 42 U.S.C. section 1983, alleging that defendants prevented the exercise of plaintiffs' Constitutional rights of free speech, peaceable assembly and free exercise of religion. Now before the Court is defendants' motion for summary judgment on the basis of qualified immunity. Having carefully considered the parties' papers, and with the benefit of oral argument, defendants' motion for summary judgment is hereby GRANTED.
BACKGROUND
At the time of the incident, Eric Milton, Dan McCullough, Victoria Soria, and Myh Vo ("plaintiffs") were members of an anti-abortion group called "Survivors of the Abortion Holocaust" ("Survivors"). As part of the group's Fall 2002 Campus Life Tour, plaintiffs arrived at the campus of San Francisco State University ("SFSU") on October 10, 2002 to deliver a pro-life message. Plaintiffs were neither SFSU students nor affiliated with any SFSU organization. Prior to their arrival, plaintiffs had not coordinated their visit with SFSU officials.
At SFSU, the Office of Student Programs Leadership Development ("OSPLD") is responsible for approving all demonstrations, literature distribution and similar types of activities on campus. Flowers Decl. ¶ 1. Defendant Will Flowers, a representative from OSPLD, met with plaintiffs on the day of the incident.
Flowers states that he approved plaintiffs' request to hand out literature but not to display any posters in the Malcom X Plaza ("Plaza") area. Id. ¶ 3. Flowers was concerned that the large posters would interfere with and distract from the peaceful conduct of a Queer Alliance event already taking place in the Plaza, which included amplified music, speakers, food booths, and an estimated 300 people. Id. In his deposition, Flowers also states that he thought the posters were made of wood and could pose a danger to students if they fell over. Flowers Depo. at 8-10. He recalled that the signs had fallen over during a prior demonstration by Survivors. Id.
Plaintiffs recall receiving permission to be on campus but do not recall the details. They arranged themselves on a grassy lawn near the library. Plaintiffs were approximately twenty feet away from the Queer Alliance tables set up in the Plaza. Plaintiffs displayed several four by five foot signs, some of which contained pictures of aborted babies, and offered literature to those who wanted it. The posters were made of Styrofoam. McCullough Decl. at 2. Approximately fifty people eventually gathered around plaintiffs' display.
After receiving a complaint from Queer Alliance, Flowers went to the Plaza where he observed an increasing large group gathering around plaintiffs. Flowers Decl. ¶ 5. He observed yelling between plaintiffs and onlookers and that the resulting noise level was disturbing the library patrons. Flowers Depo. at 15, 19. He received approximately six complaints from students in the library about the noise in the Plaza. Id. at 20.
In contrast, plaintiffs state that they engaged in conversation with some of the onlookers but were not yelling or acting in a boisterous manner. McCullough Depo. at 35; McCullough Decl. at 3; Milton Decl. at 3. Defendant Gaston, who arrived after Flowers, did not recall any yelling by plaintiffs. Gaston Depo. at 7. Gaston further stated that members of the Student Socialist Organization were yelling at plaintiffs and encouraging other onlookers to heckle plaintiffs. Id. at 8. He recalled hearing one Student Socialist member declare, "We need to get the anti-abortion bigots off campus, or anti-abortion racists." Id. at 10. Defendants concede that plaintiffs did not encourage or threaten any violent behavior. Id. at 7; Flowers Depo. at 19. Plaintiffs were not using any amplification devices.
According to Flowers, he determined that plaintiffs were disrupting the peaceful conduct of the educational activities at campus. Flowers Depo. at 24; Flowers Decl. ¶ 6. After confirming that decision with Associate Vice President Bowman, he requested the SFSU police department to direct the plaintiffs to leave campus.
Captain Gaston explained to plaintiffs that they were violating California Penal Code section 626.6 and asked them to leave campus. The plaintiffs left campus with the exception of plaintiff Eric Milton who continued to display his sign. He was then arrested and cited for violating California Penal Code sections 626.6(a) and 415.5(a)(2). The charges were later dropped. Plaintiffs allege that defendants' actions were unconstitutional
DISCUSSION
Defendants assert that they are entitled to qualified immunity as a matter of law because reasonable officers in their position could have believed that plaintiffs were violating California Penal Code Section 626.6(a). Plaintiffs respond that reasonable officers would have known that section 626.6 permits excluding non-students from campus only if their "conduct or words are such as to constitute, or incite to, a substantial and material physical disruption incompatible with the peaceful functioning of the academic institution and of those upon its campus." Braxton v. Municipal Court, 10 Cal. 3d 138, 151 (1973).
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact. See id. at 323. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See id. Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law.See Celotex, 477 U.S. at 323.
II. QUALIFIED IMMUNITY
A. The Qualified Immunity Standard
An individual whose constitutional rights have been violated by a public official acting under color of state law may sue the official for damages. See 42 U.S.C. § 1983 (2000). Public officials are protected from "undue interference with their duties and from potentially disabling threats of liability."Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818. Qualified immunity operates "to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful." Saucier v. Katz, 533 U.S. 194, 206 (2001).
In considering a claim of qualified immunity, a court must first determine whether the plaintiffs have alleged the deprivation of an actual constitutional right. See id. at 201. If they have, the court must then determine whether that right was clearly established at the time of the violation. See id. The relevant inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id. at 202. The clearly established test is met if "`in light of the pre-existing law the unlawfulness [is] apparent.'" Galvin v. Hay, 361 F.3d 1134, 1139 (9th Cir. 2004) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
Even if an officer's actions violate a constitutional right, a reasonable but mistaken belief that his conduct was lawful would result in the grant of qualified immunity. Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir. 2003).
B. Whether Reasonable Officers in Defendants' Position Could Believe Their Conduct was Lawful
For purpose of their summary judgment motion, defendants assume that plaintiffs have alleged the deprivation of an actual constitutional right. The central issue, then, is whether a reasonable officer in the defendants' position could believe that his or her conduct was lawful. In analyzing this question, this Court must take facts and inferences supported by the record in favor of plaintiffs. See Cunningham v. City of Wenatchee, 345 F.3d 802, 810 (9th Cir. 2003), cert. denied, 124 S. Ct. 2070 (2004).
Viewing the evidence in the light most favorable to plaintiffs, the facts show that plaintiffs were peacefully distributing pro-life literature and displaying pro-life posters, a crowd of approximately forty to fifty students gathered around plaintiffs, various members of the audience were heckling plaintiffs and acting boisterously, plaintiffs engaged in some discussion but remained peaceful and never blocked access to any buildings or encouraged any violent behavior, and defendant Flowers received approximately six complaints from students in the library about the noise coming from the demonstration.
1. California Penal Code section 626.6(a) (Power to Direct Person to Leave Campus)
California Penal Code section 626.6(a) states:
(a) If a person who is not a student . . . enters a campus or facility, and it reasonably appears . . . that the person is committing any act likely to interfere with the peaceful conduct of the activities of the campus or facility, or has entered the campus or facility for the purpose of committing any such act, the chief administrative officer or his or her designee may direct the person to leave the campus or facility.
(b) The provisions of this section shall not be utilized to impinge upon the lawful exercise of constitutionally protected rights of freedom of speech or assembly.
By its terms, the statute encompasses a broad range of conduct. For example, the word "interfere" in the statute's predecessor was interpreted to mean "disarrange," "disturb," or "hinder."People v. Agnello, 259 Cal. App. 2d 785, 791 (1968).
In this case, defendants could have believed that plaintiffs' conduct fell within the statute. By distributing pro-life literature and displaying signs, plaintiffs elicited a hostile and loud response by the audience that disrupted students who were studying in the library, thus interfering with the peaceful activities of campus. Under the plain language of the statute, the disruption to campus activities is not limited to boisterous activity by non-students. Flowers could have believed that plaintiffs' demonstration was responsible for the crowd's hostile reaction and ultimately the cause of the campus disturbance.
2. Was it Clearly Established that Peaceful Non-Student Demonstrators Could Not be Excluded from University Grounds based on a Disruptive Audience Reaction?
The Court must now determine whether it was clearly established that the statute as applied to plaintiffs was unconstitutional. Plaintiffs argue that it was clearly established that peaceful non-student demonstrators could not be excluded from university grounds based on a disruptive audience reaction. Plaintiffs base this conclusion on the California Supreme Court's decision inBraxton v. Municipal Court, 10 Cal. 3d 138 (1973). In that case, the court interpreted California Penal Code section 626.4 which authorized the banishment of any person from a campus if "such person has wilfully disrupted the orderly operation of such campus." Id. at 142. Concerned that the statute would penalize constitutionally protected speech, the court narrowly construed section 626.4 to permit exclusion from the campus only of one whose "conduct or words are such as to constitute, or incite to, a substantial and material physical disruption incompatible with the peaceful functioning of the academic institution and of those upon its campus." Id. at 151.
The court reasoned that speech could not be prohibited because some members of the audience created a disruption or "because such expression or association disrupts the tranquility of a campus or offends the tastes of school administrators or the public." Id. at 145, 148. A broad reading of the statute failed because it did not distinguish between protected activity, such as peaceful picketing or assembly, and unprotected conduct that is violent, physically obstructive or otherwise coercive. Id.
Plaintiffs make a persuasive argument that the Court's reasoning in Braxton should apply to section 626.6. Both statutes use similar terms and involve the constitutionality of excluding individuals from college campuses without violating the first amendment.
However, Braxton does not "clearly establish" the right of peaceful non-student demonstrators to remain on university grounds when an audience reaction disrupts university activities. While section 626.6 only applies to non-students, Braxton was interpreting a statute that applied to both students and non-students. Id. at 144 n. 2. The California Supreme Court limited its holding to the statute's impact on students:
Since students normally possess rights not enjoyed by many non-students (use of the library, the right to attend classes), students constitute the group most likely to be burdened by the statute at issue. Accordingly, throughout this opinion reference is made to potential applications of the statute to students though the statute is not so confined.Id. From this language, one could reasonably believe that the outcome might have been different if the statute only applied to non-students.
The United States Supreme Court has also addressed the restriction of speech on or near school grounds. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969);Grayned v. City of Rockford, 408 U.S. 104, 107-08 (1972). BothGrayned and Tinker held that expressive activity could only be prohibited if it "materially disrupts classwork or involves substantial disorder or invasions of the rights of others." Grayned, 408 U.S. at 118 (quoting Tinker, 393 U.S. at 513). Tinker involved expressive activity of students on school grounds;Grayned involved expressive activity of non-students on a public sidewalk or traditional public forum. Neither case addressed the right of peaceful nonstudent demonstrators to remain on campus grounds.
The Supreme Court has also cautioned that students and non-students do not necessarily share the same rights on campus grounds. See Widmar v. Vincent, 454 U.S. 263, 268 n. 5 (1981) (stating that the campus of a public university, at least forits students, possesses many of the same characteristics of a public forum) (emphasis added). The Court has cautioned that a university differs in significant respects from public forums such as streets or parks and its decisions "have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities." Id. The Court "has not held, for example, that a campus must make all of its facilities equally available to students and non-students alike." Id.
Although plaintiffs make a strong argument that their constitutional rights were violated, the inquiry on qualified immunity is whether those rights were "clearly established." Plaintiffs do not cite any case addressing the right of peaceful non-student demonstrators to remain on campus. At the time of the incident, it was not clearly established that peaceful non-student demonstrators could only be excluded from university grounds based on a material disruption by the demonstrators rather than a hostile audience reaction to the demonstration that materially disrupts campus activities. The defendants are entitled to qualified immunity, and their motion for summary judgment is GRANTED.
III. INJUNCTIVE RELIEF
Defendants also move to dismiss plaintiffs' claim for injunctive relief. Defendants argue that none of the plaintiffs regularly participate in Survivors group activities or intend to rejoin the group on another Campus Life Tour. According to defendants, plaintiffs do not suffer a continuing injury because it is unlikely that they will ever return to SFSU.
Although a plaintiff who has been constitutionally injured can bring an action to recover damages under 42 U.S.C. section 1983, that same plaintiff cannot maintain an injunctive action unless he or she can demonstrate a good chance of being likewise injured in the future. Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991); see also O'Shea v. Littleton, 414 U.S. 488, 495-96 ("Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.").
Applying these principles in PeTA v. Rasmussen, the Tenth Circuit held that plaintiffs did not have standing to seek injunctive relief when there was no evidence that they intended to stage future protests at institutions of higher education. 298 F.3d 1198, 1203 (10th Cir. 2002). Similarly, there is no evidence in this case that plaintiffs intend to return to SFSU. Some, and possibly all, plaintiffs are no longer members of the Survivors group and do not participate in pro-life demonstrations such as the Campus Life Tour. See McCullough Dep. at 59-60; Milton Dep. at 49. Plaintiffs have not offered any evidence in rebuttal and apparently concede this point. Based on the record, it does not appear that plaintiffs intend to conduct any future demonstrations at SFSU. Accordingly, plaintiffs do not have standing to seek injunctive relief.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment of qualified immunity is GRANTED. Defendants' motion to dismiss plaintiffs' claim for injunctive relief is GRANTED.
IT IS SO ORDERED.