Villegas v. City of Gilroy

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE VILLEGAS, BOB POELKER, 

MARCELO ORTA, and DON

DEROSIERS, No. 05-15725

Plaintiffs-Appellants,

v.  D.C. No.

CV-01-20720-JW

CITY OF GILROY, and GILROY OPINION

GARLIC FESTIVAL ASSOCIATION, INC.,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

James Ware, District Judge, Presiding

Argued and Submitted

February 16, 2007—San Francisco, California

Filed April 30, 2007

Before: Ronald M. Gould and Johnnie B. Rawlinson,

Circuit Judges, and Alfred V. Covello,* District Judge.

Opinion by Judge Covello

*The Honorable Alfred V. Covello, Senior United States District Judge

for the District of Connecticut, sitting by designation.

4773

VILLEGAS v. CITY OF GILROY 4775

COUNSEL

Randolph M. Hammock, Canoga Park, California, for the

plaintiffs-appellants.

4776 VILLEGAS v. CITY OF GILROY

Mark L. Strombotne and Bronwen E. Lacey, San Jose, Cali-

fornia, for the defendant-appellee City of Gilroy.

Gregory C. Simonian and G. Martin Velez, Daly City, Cali-

fornia, for the defendant-appellee Gilroy Garlic Festival Asso-

ciation.

OPINION

COVELLO, District Judge:

This is an action for damages alleging violations of the

plaintiffs’ First Amendment constitutional rights incident to

their exclusion from a garlic festival. It is brought pursuant to

42 U.S.C. section 1983,1 and article I, section 2 of the state

of California’s constitution and California’s civil rights act,

section 51 et seq. of the California Civil code.2 George Ville-

gas and others, members of the Top Hatters Motorcycle Club

(hereinafter “plaintiffs”), appeal the district court’s grants of

summary judgment in favor of the City of Gilroy (“City”) and

the Gilroy Garlic Festival Association (“GGFA”), on the

plaintiffs’ claims brought pursuant to 42 U.S.C. section 1983.

The issues presented are: 1) whether the act of wearing

vests adorned with a common insignia is sufficient to estab-

lish a violation of the First Amendment’s right to freedom of

expression; and 2) whether the plaintiffs here otherwise

engaged in sufficient expressive activity to establish a viola-

1

Title 42 of the United States Code, section 1983, provides a cause of

action for the “deprivation of any rights, privileges or immunities secured

by the Constitution and laws” of the United States. 42 U.S.C. § 1983.

2

Having determined that there were no federal constitutional principles

compromised here, and having granted the defendants’ motion for sum-

mary judgment, the trial court declined to exercise jurisdiction over the

remaining state law claims and ordered them dismissed. The plaintiffs

have not appealed this ruling.

VILLEGAS v. CITY OF GILROY 4777

tion of the First Amendment’s right to freedom of association.3

For the reasons hereinafter set forth, we affirm the decision of

the district court.

FACTS

Examination of the complaint, pleadings, exhibits accom-

panying the motion for summary judgment, and the responses

thereto, and the testimony submitted to the district court dis-

closes the following undisputed material facts.

On July 28, 2000, the Gilroy Garlic Festival (hereinafter

“festival”) opened. On July 30, 2000, the plaintiffs, members

of a motorcycle club, paid admission and entered the festival

grounds. The festival promoted the vegetable garlic and

offered many varieties of food and entertainment in a family-

friendly atmosphere. The GGFA put on the festival from July

28, 2000, through July 30, 2000, at a public park in the city

of Gilroy, California. At the time they entered the festival, the

plaintiffs were wearing identical vests adorned with patches.

The patches on the back of the vests depicted a skull with

wings and a top hat. The vests also included the words “Top

Hatters” above the top hat, skull and wings and the word

“Hollister” below.4 The festival promoters had adopted an

unwritten festival dress code which provided that persons

attending the festival not be permitted to wear gang colors or

other demonstrative insignia, including motorcycle club insig-

nia. Upon noticing the plaintiffs’ similar dress, Donald Kludt,

3

The trial court also made conclusions of law as to whether a police

officer was acting under color of law and whether the Gilroy Garlic Festi-

val, Inc., was a state actor for the purposes of section 1983 liability. In

view of our conclusion that no constitutional violation has occurred here,

it is not necessary to address these additional issues.

4

The record includes photographs of the vests. In those photographs, the

word California appears at the bottom of the vests. At the time the plain-

tiffs entered the festival, however, the word Hollister appeared at the bot-

tom of the vests. Sometime between the festival and the time the

photographs were taken, the plaintiffs changed this portion of their vests.

4778 VILLEGAS v. CITY OF GILROY

an off-duty Gilroy police officer and chair of security for the

festival directed another Gilroy police officer, D. Bergman, to

escort the plaintiffs back to the gate. Bergman asked the

plaintiffs to follow her to the gate. Once the plaintiffs were at

the gate, Kludt explained to them the GGFA dress code policy

and asked them to remove their vests. The plaintiffs refused.

Kludt then directed the plaintiffs to leave the festival. After

festival employees refunded their admission, the plaintiffs

left.

The stated purpose of the Top Hatters Motorcycle Club was

to ride motorcycles and raise money for charities. The club’s

articles of incorporation further state that its charitable pur-

poses “are to promote good will and understanding among

disparate community groups and to raise and distribute funds

to other charitable organizations or to needy individuals.”

When asked, during his deposition, whether the Top Hatters

advocated any political, religious, or other viewpoints, appel-

lant Villegas answered “no.” Further, with respect to the

insignia on the back of their vests, appellant Villegas testified

that to him the skull represented “[t]he belief [that] under-

neath our skin all of us are alike.” Villegas further stated that

the wings represented freedom and the top hat represented the

members of the original Top Hatters Motorcycle Club. Appel-

lant Donald Derosiers stated that to him the skull represented

death, the wings represented freedom and the top hat repre-

sented those original members of the Top Hatters who are still

living. He denied that the Top Hatters attributed any particular

meaning to the insignia. To appellant Marcelo Orta, only the

top hat had any meaning.5 Finally, appellant Bob Poelker

stated that the insignia signified “whatever you want to inter-

pret it as.”

On July 30, 2001, the plaintiffs filed the complaint in this

case. On April 24, 2002, and April 29, 2002, respectively, the

5

Orta stated that the only portion of the insignia that had any meaning

was the top hat because of the club’s name, the “Top Hatters.”

VILLEGAS v. CITY OF GILROY 4779

City and the GGFA filed motions to dismiss. On August 29,

2002, the district court granted the motions to dismiss. On

September 20, 2002, the plaintiffs appealed the district court’s

dismissal. On March 11, 2004, this court reversed and

remanded the case to the district court.6 On September 13,

2004, the City and GGFA filed motions for summary judg-

ment. On April 5, 2005, the district court granted those

motions and rendered judgment in favor of the defendants. On

April 18, 2005, the plaintiffs filed a notice of appeal in this

case.

STANDARD OF REVIEW

This court reviews a district court’s grant of summary judg-

ment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.

1996). “The appellate court must determine, viewing the evi-

dence in the light most favorable to the nonmoving party,

whether genuine issues of material fact exist and whether the

district court correctly applied the relevant substantive law.”

Id.

This court must determine whether: 1) a violation of a right

secured by the Constitution and laws of the United States has

occurred; and 2) the person alleged to have committed the

violation acted under color of state law. See West v. Adkins,

487 U.S. 42, 48 (1988). In assessing a section 1983 claim on

summary judgment, the court must determine whether

“[t]aken in the light most favorable to the party asserting the

injury . . . the facts alleged show the [defendants’] conduct

violated a constitutional right[.]” Saucier v. Katz, 533 U.S.

194, 201 (2001).

6

This court reversed because the district court, in granting the motions

to dismiss, relied on information in the declarations filed in support of the

motions. This court remanded, directing the district court to treat the

motions to dismiss as motions for summary judgment. Villegas v. City of

Gilroy, 90 Fed. Appx. 981, 982 (9th Cir. 2004) (designated not suitable

for publication).

4780 VILLEGAS v. CITY OF GILROY

DISCUSSION

I. Freedom of Expression

With respect to the constitutional element of their section

1983 claims, the plaintiffs first allege a violation of their First

Amendment right to freedom of expression. The plaintiffs

argue that the district court erred when it concluded that the

plaintiffs’ vests and insignia did not constitute expressive con-

duct worthy of First Amendment protection. The City and

GGFA respond that the plaintiffs’ act of wearing their vests

to the festival was not sufficient expressive conduct to support

a violation of the First Amendment. The district court found

that it was unclear what message the plaintiffs intended to

convey by wearing their vests, and concluded that no constitu-

tional violation had occurred.

[1] The First Amendment specifically forbids the abridge-

ment of speech. U.S. Const. amend. I. The United States

Supreme Court has, however, recognized that certain conduct

that is “imbued with elements of communication,” Spence v.

Washington, 418 U.S. 405, 409 (1974), may also qualify for

First Amendment protection. In Spence, the Supreme Court

held that when determining whether conduct rises to the level

of expressive conduct worthy of First Amendment protection,

the court should consider whether “[a]n intent to convey a

particularized message was present and [whether] the likeli-

hood was great that the message would be understood by

those who viewed it.” Id. at 410-11; see also Texas v. John-

son, 491 U.S. 397, 404 (1989). The Court further stressed the

importance of the context in which the symbol is used, noting

that “the context may give meaning to the symbol.” Spence,

418 U.S. at 410.

The plaintiffs cite this court’s decision in Sammartano v.

First Judicial District Court, 303 F.3d 959 (9th Cir. 2002),

for the proposition that a patch on a motorcycle club mem-

ber’s vest constitutes expressive conduct for purposes of the

VILLEGAS v. CITY OF GILROY 4781

First Amendment. In Sammartano, however, the court did not

address the issue of whether the plaintiffs’ conduct was suffi-

ciently expressive to warrant First Amendment protection.7

[2] In this case, the district court correctly applied the test

in Spence and concluded that the plaintiffs’ act of wearing

their vests and insignia into the festival did not rise to the

level of protected speech for purposes of the First Amend-

ment. The insignia on their vests depicted a skull with wings

on either side and a top hat. All of the members of the plain-

tiffs’ motorcycle club had different interpretations of the

meaning of their club insignia. As appellant Poelker stated,

the insignia signified “whatever you want to interpret it as.”

Even amongst themselves, the plaintiffs could not agree on a

common theme or message that they sought to convey by

wearing their vests and insignia. There is nothing in the

record tending to establish such a common message. The dis-

trict court was, therefore, correct in concluding that the plain-

tiffs vests did not manifest an “intent to convey a

particularized message.” Spence, 418 U.S. at 410-11.

[3] In addition, there is little likelihood that any message

would be understood by those viewing the plaintiffs’ vests

and, further, the context in which the plaintiffs’ alleged

expression took place does not add any additional meaning to

7

In Sammartano, members of certain motorcycle clubs were not permit-

ted into courtrooms of a government building without removing their vests

and/or jackets adorned with club insignia. 303 F.3d at 962-63. When they

refused to remove them or leave the premises, they were arrested for tres-

pass. Id. The club members filed a section 1983 action, alleging violations

of their First Amendment rights. Id. at 964. The district court denied their

motion for a preliminary injunction and this court reversed. Id. at 975.

This court applied the standard for injunctive relief, that is, (1) the likeli-

hood of success on the merits and the possibility of irreparable harm, or

(2) the presence of serious questions and a balance that tips in favor of the

movant. Id. at 965. Although this court found the standard satisfied for

purposes of the preliminary injunctive relief sought, id. at 974, this court

did not address the question of whether the plaintiffs’ vests qualified as

expression for purposes of the First Amendment.

4782 VILLEGAS v. CITY OF GILROY

their symbol. The plaintiffs attended an annual festival cen-

tered around garlic that offered many varieties of food and

entertainment in a family-friendly atmosphere. Nothing about

the festival would tend to give any further meaning to the

plaintiffs’ act of wearing their vests and common insignia. As

this court has recognized, context is crucial when determining

whether conduct rises to the level of expression for purposes

of the First Amendment. Spence, 418 U.S. at 410; see also

Vlasak v. Superior Court of California, 329 F.3d 683, 690-91

(9th Cir. 2003).8 In this case, the plaintiffs’ act of wearing

their vests adorned with a common insignia simply does not

amount to the sort of expressive conduct protected by the First

Amendment right to freedom of speech.9

II. Expressive Association

[4] Also within the ambit of First Amendment protection

are the rights to freedom of intimate association and expres-

sive association. Roberts v. U.S. Jaycees, 468 U.S. 609, 617-

18 (1984). The plaintiffs argue that the district court erred

when it concluded that because the plaintiffs were not

engaged in expressive conduct, they did not have a right to

expressive association.

The plaintiffs cite United States v. Rubio, 727 F.2d 786,

791 (9th Cir. 1984), for the proposition that they are entitled

to relief on their First Amendment freedom of association

claim. In Rubio, this court concluded that the Hells Angels

8

In Vlasak, this court found the appellant’s conduct to be expressive for

purposes of the First Amendment where the appellant stood outside of a

circus holding a bull hook in one hand and a picture of the hook being

used on elephants in the other. Vlasak, 329 F.3d at 686, 690-91. The court

concluded that a person passing by would understand the purpose of the

bull hook because of the photographs. Id. at 691.

9

The plaintiffs further state that the dress code at issue was unconstitu-

tionally vague and overbroad. Neither the district court nor the appellees

in this case have addressed this purported facial attack on the dress code

policy and the complaint does not contain such an allegation.

VILLEGAS v. CITY OF GILROY 4783

motorcycle club had a First Amendment right to freedom of

association. That case, however, was decided prior to the

Supreme Court’s decision in Boy Scouts of America v. Dale,

530 U.S. 640 (2000), infra, and the Rubio panel did not

address the requirement of expressive activity as an incident

to a claim of freedom of association.10

The United States Supreme Court has recognized that “im-

plicit in the right to engage in activities protected by the First

Amendment is a corresponding right to associate with others

in pursuit of a wide variety of political, social, economic, edu-

cational, religious, and cultural ends.” Boy Scouts, 530 U.S.

at 647 (citation omitted). In order to support a claim for such

association, the “group must engage in some form of expres-

sion, whether it be public or private.” Id. at 648. In Boy

Scouts, the Court held that the Boy Scouts organization

engaged in expressive activity where their general mission

was “to instill values in young people.” Id. at 649-50. The

Boy Scouts’ official policy was that homosexuality was “in-

consistent with the values it seeks to instill in its youth mem-

bers.” Id. at 654. The Court held that applying New Jersey’s

public accommodations law to require the Boy Scouts to read-

mit James Dale, a homosexual male, as an assistant scoutmas-

ter violated the Boy Scouts’ First Amendment right to

freedom of association. Id. at 644. The Court stated that “the

presence of Dale as an assistant scoutmaster would just as

surely interfere with the Boy Scouts’ choice not to propound

10

Rubio was a criminal case in which the appellant argued that a search

warrant, which authorized the seizure of “indicia of membership in or

association with the Hell’s Angels [Motorcycle Club],” violated his First

Amendment right to freedom of association. Rubio, 727 F.2d at 790. This

court summarily concluded that the First Amendment protected the Hells

Angels’ right to associate with one another but went on to state that the

criminal investigation was not prohibited where it interfered with First

Amendment interests. Id. This court did not analyze the issue of whether

the Hells Angels engaged in sufficient expressive activity. As a result, the

Rubio decision contains no factual background and/or analysis as to the

nature and purpose of the Hells Angels motorcycle club.

4784 VILLEGAS v. CITY OF GILROY

a point of view contrary to its beliefs.” Id. at 654. The Court

recognized that “associations do not have to associate for the

‘purpose’ of disseminating a certain message in order to be

entitled to the protections of the First Amendment. An associ-

ation must merely engage in expressive activity that could be

impaired in order to be entitled to protection.” Id. at 655.

[5] In IDK, Inc. v. Clark County, 836 F.2d 1185 (9th Cir.

1988), this court recognized that “[t]he First Amendment’s

freedom of association protects groups whose activities are

explicitly stated in the amendment: speaking, worshiping, and

petitioning the government.” Id. at 1192 (citing Roberts v.

U.S. Jaycees, 468 U.S. 609, 622-23 (1984)). We do not have

such activity in this case.

[6] The plaintiffs were members of a motorcycle club

whose stated purpose was to ride motorcycles, promote good

will among disparate community groups and raise money for

charities. When asked, during his deposition, whether the

plaintiffs advocated any political, religious, or other view-

points, appellant Villegas answered “no.”

[7] There is no evidence that the plaintiffs’ club engaged in

the type of expression that the First Amendment was designed

to protect. As the Supreme Court stated, an organization must

“engage in expressive activity that could be impaired in order

to be entitled to protection.” Id. at 655. Here, the plaintiffs

were not engaged in any sort of “expressive activity that could

be impaired.” Id. Further, even if this court were to conclude

that the plaintiffs’ charity work and their promotion of good-

will among disparate community groups amounts to sufficient

expressive activity,11 there is no evidence that at the time they

11

In Boy Scouts, the Court stated that “[i]t seems indisputable that an

association that seeks to transmit such a system of values engages in

expressive activity.” Id. at 650 (citing Roberts v. United States Jaycees,

468 U.S. 609, 636 (1984) (O’Connor, J., concurring) (“Even the training

of outdoor survival skills or participation in community service might

VILLEGAS v. CITY OF GILROY 4785

entered the festival, the plaintiffs were engaged in such activi-

ties. In addition, there is no evidence in this case that the

defendants’ actions in any way violated the plaintiffs’ right to

associate with one another or to pursue their stated purposes

of riding motorcycles, giving to charity and promoting good

will.12 The defendants’ refusal to permit the plaintiffs access

to the festival only limited the plaintiffs’ access to a particular

location; a location that had no relation to the purposes under-

lying their association with one another.

[8] The court concludes that the plaintiffs did not engage in

the kind of expressive conduct that would support a violation

of the First Amendment’s right to freedom of association.

AFFIRMED.

become expressive when the activity is intended to develop good morals,

reverence, patriotism, and a desire for self-improvement.”). In this case,

although the plaintiffs performed community service, there is no evidence

that their purpose in doing so was to transmit a system of values within

their organization.

12

In Boy Scouts, the Court recognized expressive activity in the organi-

zation’s purpose of “instill[ing] values in young people” where the inter-

pretation of and interference with those values were directly in issue

because of the defendants’ actions.