Fogel v. Collins

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATTHEW FOGEL, 

Plaintiff-Appellant,

v.

No. 06-15395

WESLEY COLLINS, Officer; GRASS

D.C. No.

VALLEY POLICE DEPARTMENT;

MICHAEL HOOKER, Officer; JAROD  CV-05-00444-

JOHNSON, Officer; GARY DFL/KJM

MCCLAUGHRY, Officer; GREG OPINION

MCKENZIE, Officer; JASON PERRY,

Officer,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of California

David F. Levi, District Judge, Presiding

Argued and Submitted

October 18, 2007—San Francisco, California

Filed June 27, 2008

Before: Melvin Brunetti, William A. Fletcher, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge William A. Fletcher

7683

7686 FOGEL v. COLLINS

COUNSEL

Stephen A. Munkelt, Nevada City, Nevada, for the appellant.

Gayle K. Tonon, Truckee, California, for the appellees.

OPINION

W. FLETCHER, Circuit Judge:

Police officers of the City of Grass Valley, California,

arrested plaintiff-appellant Matthew Fogel and impounded his

van because of messages painted on the back of the vehicle.

Fogel brought suit against Grass Valley and six police officers

under 42 U.S.C. § 1983, alleging a violation of his First

FOGEL v. COLLINS 7687

Amendment rights. The district court assumed without decid-

ing that Fogel’s First Amendment rights had been violated.

On that assumption, it granted summary judgment for defen-

dants, holding that the City of Grass Valley had not imple-

mented an unconstitutional policy or custom, and that the

police officers were entitled to qualified immunity. We hold

rather than assume that Fogel’s First Amendment rights were

violated. We nevertheless affirm, for the reasons given by the

district court.

I. Background

On May 25, 2004, Sergeant Michael Hooker of the Grass

Valley Police Department received an anonymous phone call

about a parked white Volkswagen van. The caller reported

that messages written on the van frightened her. Sergeant

Hooker located the unattended 1970 van in the lot of an apart-

ment complex. The words “I AM A FUCKING SUICIDE

BOMBER COMMUNIST TERRORIST!” were painted in

block letters on the back of the van above the rear window.

On the rear window was painted “PULL ME OVER!

PLEASE, I DARE YA[.]” Below the window in slightly

smaller letters was the text “ALLAH PRAISE THE

PATRIOT ACT . . . FUCKING JIHAD ON THE FIRST

AMENDMENT! P.S. W.O.M.D. ON BOARD!” A small

American flag was attached to the van below the lettering.

The rest of the van was decorated with slogans and paintings

that had no political or threatening character.

Sergeant Hooker was able to determine that the van

belonged to Matthew Fogel, a 22-year-old resident of Nevada

City, a town four miles away from Grass Valley. Hooker con-

cluded that the messages on the van were just “political sat-

ire” and returned to the police station after taking digital

photographs of the van. Hooker then called his superior,

Defendant Captain Jarod Johnson, who was on back-up on-

call duty. Hooker read Johnson the words on the van. Johnson

disagreed with Hooker’s characterization of the writing as

7688 FOGEL v. COLLINS

mere satire. Johnson was “quite certain that a criminal act had

been committed” and that the van needed to be removed from

its location at the apartment lot.

Captain Johnson ordered Sergeant Hooker to “handle this

as a bomb threat,” citing the high terror alert in the country.

Now, based on Johnson’s instruction, Hooker “determined

that in fact this was not protected speech, but was criminal.”

Hooker assigned the criminal investigation to Defendant Offi-

cer Jason Perry, who contacted the Department of Homeland

Security (“DHS”) and the Federal Bureau of Investigation

(“FBI”). Perry soon learned that Fogel had no criminal his-

tory.

Sergeant Hooker returned to the van, joined by Officer

Perry and defendant Officers Wesley Collins, Gary

McClaughry, and Greg McKenzie. Hooker and Perry found

Fogel fairly easily in an apartment in the complex with

friends. Hooker and Perry asked Fogel about the van, and

Fogel said that he had painted the messages earlier that day.

Hooker, Perry and Fogel then walked out to the parking lot.

Officer Perry asked Fogel to explain the messages on the

back of the van. There is some dispute about Fogel’s

response. The officers contend that Fogel stated he wanted to

“scare people,” and then stated that he wanted to “scare peo-

ple into thinking.” The officers contend further that Fogel said

that he wanted to “terrorize the people of Nevada County like

the Iraqi people are being terrorized by the U.S. military.”

Fogel denies making these statements. Despite these pur-

ported statements, Sergeant Hooker found Fogel to be “mild

mannered,” and Officer McKenzie stated in his deposition

that he “personally didn’t take [the writing] as a threat” and

“[t]he context was not threatening” to him.

Fogel assured the officers that there was no bomb and he

encouraged them to search the van. The search revealed no

bomb, or indeed anything illegal, in the van. Although Cap-

FOGEL v. COLLINS 7689

tain Johnson had directed Sergeant Hooker to treat the situa-

tion as a bomb threat, the officers did not follow the Grass

Valley Police Department’s standard bomb threat procedures

at the scene or during their search of the van.

While they were in the parking lot with Fogel, Officer

Perry received word from DHS that the agency was “familiar

with Fogel . . . as being a local anti government type of per-

son” who was considered a “local nut.” Perry then arrested

Fogel for violation of California Penal Code § 422 for “will-

fully threaten[ing] to commit a crime which will result in

death or great bodily injury to another person”; § 148.1 for a

“false report of secretion of explosive or facsimile bomb”;

and § 415 for the “use[ ] of offensive words in a public place

which are inherently likely to provoke an immediate violent

reaction.”

Sergeant Hooker called a private towing company to

impound the van. He instructed the company not to release

the van until Fogel removed or painted over the writing. Fogel

was told he would have to remove or paint over the entire

message in order to retrieve his vehicle from the impound lot.

No one informed the towing company that a bomb might be

inside because, according to Hooker, “at that point we did not

believe there was one.” Fogel was held in the Grass Valley

jail overnight. The local District Attorney declined to press

charges, and Fogel was released from jail the following morn-

ing. Fogel recovered his van later that day after painting over

the messages with white paint.

Fogel filed a § 1983 suit for damages against the Grass

Valley Police Department and officers Johnson, Hooker,

Perry, Collins, McClaughry, and McKenzie in their individual

capacities. He challenged his arrest and the seizure of his van,

contending that his First, Fourth, and Fourteenth Amendment

rights had been violated. He also brought state-law claims for

false arrest, assault, and battery.

7690 FOGEL v. COLLINS

After discovery, defendants moved for summary judgment,

and Fogel cross-moved for partial summary judgment. The

district court granted summary judgment to all of the defen-

dants. Fogel v. Grass Valley Police Dep’t, 415 F. Supp. 2d

1084, 1090 (E.D. Cal. 2006). The court held that there was a

genuine issue of disputed fact whether the writing on the van

was a true threat and thus unprotected by the First Amend-

ment. Id. at 1088. However, for purposes of qualified immu-

nity, the court assumed that the writing was protected by the

First Amendment and that the individual officers had violated

Fogel’s rights under the amendment. Id. at 1089. It then held

that the individual officers were entitled to qualified immu-

nity. Id. It further held that the City of Grass Valley had not

acted pursuant to an unconstitutional policy or practice. Id. at

1090. Fogel timely appealed the district court’s grant of sum-

mary judgment to defendants.1

II. Standard of Review

We review a district court’s grant of summary judgment de

novo. We draw all legitimate factual inferences in favor of

Fogel, the nonmoving party. Inouye v. Kemna, 504 F.3d 705,

711 (9th Cir. 2007); Blankenhorn v. City of Orange, 485 F.3d

463, 470 (9th Cir. 2007).

III. Individual Officers

We first address Fogel’s claim against the individual police

officers. The district court determined that qualified immunity

shielded the officers’ actions because reasonable officers

could have believed the language was not protected by the

First Amendment. Fogel, 415 F. Supp. 2d at 1089. Police offi-

cers performing discretionary functions within the scope of

1

We consider only Fogel’s First Amendment claim on appeal. Fogel

abandoned any arguments relating to his Fourth Amendment and state-law

claims by failing to argue them in his brief. See Ghahremani v. Gonzales,

498 F.3d 993, 997 (9th Cir. 2007).

FOGEL v. COLLINS 7691

their employment have qualified immunity from civil suit as

long as “their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).

A two-step analysis guides our qualified immunity inquiry.

We first ask whether “[t]aken in the light most favorable to

the party asserting the injury . . . the facts alleged show the

officer’s conduct violated a constitutional right.” Saucier v.

Katz, 533 U.S. 194, 201 (2001). If the facts, viewed in this

light, show a constitutional violation, the “sequential step is

to ask whether the right was clearly established.” Id.

A. First Amendment Violation

The district court assumed without deciding that the indi-

vidual officers violated Fogel’s First Amendment rights. We

reach that question and hold that the officers did violate his

First Amendment rights. Deciding whether political speech is

protected political hyperbole or an unprotected true threat can

be an issue for a jury, particularly in cases of criminal prose-

cution. Melugin v. Hames, 38 F.3d 1478, 1485 (9th Cir.

1994). However, Saucier instructs us, where possible, to rule

on the constitutional issue in order “to set forth principles

which will become the basis for a holding that a right is

clearly established.” 533 U.S. at 201; see id. at 207 (calling

“important” this “instruction to the district courts and courts

of appeals”); cf. Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Group of Boston, 515 U.S. 557, 567 (1995) (“This obligation

[to review and rule on the facts] rests upon us simply because

the reaches of the First Amendment are ultimately defined by

the facts it is held to embrace . . . .”).

[1] It is well-established that the First Amendment protects

speech that others might find offensive or even frightening.

Speech “may indeed best serve its high purpose when it

induces a condition of unrest, creates dissatisfaction with the

7692 FOGEL v. COLLINS

conditions as they are, or even stirs people to anger. Speech

is often provocative and challenging.” Terminiello v. City of

Chicago, 337 U.S. 1, 4 (1949). Courts have long recognized

that speech may need to be abrasive or upsetting in order to

draw attention to the speaker’s cause. See NAACP v. Clai-

borne Hardware Co., 458 U.S. 886, 928 (1982) (“Strong and

effective extemporaneous rhetoric cannot be nicely channeled

in purely dulcet phrases.”). We have “a profound national

commitment to the principle that debate on public issues

should be uninhibited, robust, and wide-open, and that it may

well include vehement, caustic, and sometimes unpleasantly

sharp attacks on government and public officials.” N. Y. Times

Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[2] “The protections afforded by the First Amendment,

however, are not absolute.” Virginia v. Black, 538 U.S. 343,

358 (2003). The Supreme Court has recognized a “true threat”

exception to the First Amendment. See, e.g., Watts v. United

States, 394 U.S. 705, 708 (1969); see also Lovell v. Poway

Unified Sch. Dist., 90 F.3d 367, 371-72 (9th Cir. 1996). A true

threat is “an expression of an intention to inflict evil, injury,

or damage on another” and such speech receives no First

Amendment protection. Planned Parenthood of the

Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290

F.3d 1058, 1075 (9th Cir. 2002) (en banc) (quotation marks

and citation omitted). If the message on Fogel’s van was mere

political hyperbole, it was protected by the First Amendment.

If it was a true threat, it was not.

[3] In most cases where courts have found that speech con-

stituted a true threat, the threatening speech was targeted

against specific individuals or was communicated directly to

the subject of the threat. See, e.g., United States v. Dinwiddie,

76 F.3d 913, 925 (8th Cir. 1996) (finding a true threat when

the defendant sent more than fifty messages to an abortion

clinic director, including: “Robert, remember Dr. Gunn. . . .

This could happen to you. . . . Whoever sheds man’s blood,

by man his blood shall be shed.”); United States v. Bellri-

FOGEL v. COLLINS 7693

chard, 994 F.2d 1318, 1320-23 (8th Cir. 1993) (finding a true

threat when the defendant sent letters to public officials

describing violence he hoped they would suffer if they failed

to act as he directed).

[4] By contrast, speech that can reasonably be characterized

as political rhetoric or hyperbole, particularly such speech not

directed at specific individuals, is protected. In Clairborne

Hardware, the Supreme Court held that the statement “If we

catch any of you going in any of them racist stores, we’re

gonna break your damn neck” was protected by the First

Amendment. 458 U.S. at 902, 928. We summarized the Clair-

borne Hardware decision in Planned Parenthood,

To the extent there was any intimidating overtone,

[the] rhetoric was extemporaneous, surrounded by

statements supporting non-violent action, and pri-

marily of the social ostracism sort. No specific indi-

viduals were targeted. For all that appears, “the

break your neck” comments were hyperbolic vernac-

ular. Certainly there was no history that [anyone]

associated with the NAACP had broken anyone’s

neck who did not participate in, or opposed, [the

cause].

290 F.3d at 1073-74 (emphasis added).

Even ostensibly threatening statements directed at specific

individuals can be protected. For example, we held in Bauer

v. Sampson that a college professor’s statement that “I, for

one, have etched the name . . . and others of her ilk on my

permanent shit list, a two-ton slate of polished granite which

I hope to someday drop in [the new college president’s] head”

was protected speech. 261 F.3d 775, 780, 783-84 (9th Cir.

2001); see also id. at 783 (calling First Amendment protection

for political speech “robust”). The Supreme Court in Watts

addressed speech that had an even more threatening message

if taken literally. There the Court held that the speech of a

7694 FOGEL v. COLLINS

Vietnam War protester who stated at a rally that “[i]f they

ever make me carry a rifle the first man I want to get in my

sights is L.B.J.” was protected. Watts, 394 U.S. at 706-708.

The statement at issue literally threatened the life of the Presi-

dent, yet the Supreme Court held that the First Amendment

protected it as political speech because of the context in which

it was spoken.

This circuit has thus far avoided deciding whether to use an

objective or subjective standard in determining whether there

has been a “true threat.” An objective standard asks whether

it is “reasonably foreseeable . . . to a speaker that the listener

will seriously take his communication as an intent to inflict

bodily harm. This suffices to distinguish a ‘true threat’ from

speech that is merely frightening.” Planned Parenthood, 290

F.3d at 1076. We have also characterized the objective stan-

dard as asking “whether a reasonable person would foresee

that the statement would be interpreted by those to whom the

maker communicates the statement as a serious expression of

intent to harm or assault.” United States v. Orozco-Santillan,

903 F.2d 1262, 1265 (9th Cir. 1990); see also Lovell, 90 F.3d

at 372. The objective standard calls for an examination of the

speech in the “light of [its] entire factual context, including

the surrounding events and reaction of the listeners.” Orozco-

Santillan, 903 F.2d at 1265; see also Bellrichard, 994 F.2d at

1321 (focusing the inquiry on the context of the speech).

This line of cases and the objective standard were called

into question by the Supreme Court’s statement in Black that

“ ‘[t]rue threats’ encompass those statements where the

speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular

individual or group of individuals,” 538 U.S. at 359. Follow-

ing Black, we applied a subjective standard in United States

v. Cassel, 408 F.3d 622, 633 (9th Cir. 2005). We “conclude[d]

that speech may be deemed unprotected by the First Amend-

ment as a ‘true threat’ only upon proof that the speaker sub-

jectively intended the speech as a threat.” Id.

FOGEL v. COLLINS 7695

We have since analyzed speech under both an objective and

a subjective standard. In United States v. Stewart, 420 F.3d

1007, 1015 (9th Cir. 2005), the defendant stated that “he

wanted to target a judge and ‘string the motherfucker up and

cut her throat, his throat, and make it like a copycat so that

people would do the same thing.’ ” We found it unnecessary

to choose between an objective and subjective standard

because the speech constituted a true threat under either stan-

dard. Id. at 1018-19. As in Stewart, it is unnecessary in this

case to choose between an objective and subjective standard,

for we conclude that Fogel’s speech was protected under

either standard.

[5] We examine the totality of the message on Fogel’s van

in light of the full context available to someone observing the

van. See Planned Parenthood, 290 F.3d at 1067; see also

Orozco-Santillan, 903 F.2d at 1265. Applying the objective

standard, we hold that “a reasonable person would [not] fore-

see that the statement [on the van] would be interpreted by

those to whom [Fogel] communicates the statement as a seri-

ous expression of intent to harm or assault.” Id. A reasonable

person would expect that an observer of Fogel’s van would

see an old Volkswagen van covered with artwork, an Ameri-

can flag, and an obviously satiric or hyperbolic political mes-

sage. The First Amendment and USA PATRIOT Act

references are overtly political speech, and reasonable observ-

ers would be hard-pressed to believe that an actual suicide

bomber would so boldly announce his presence and inten-

tions. The remainder of the van displayed innocuous images

and phrases, including some with spiritual meaning, created

through the artistic endeavors of Fogel and his friends.

[6] When we take into account the entire context of Fogel’s

statements on the van, it is hard to see how any reasonable

observer would have believed the statements were serious

expressions of an intent to cause harm. Captain Johnson inter-

preted the statements on the van as a bomb threat, but when

he instructed Sergeant Hooker to treat it in that manner, he

7696 FOGEL v. COLLINS

was relying on only a telephone description. That is, Johnson

failed to see the speech in the context of the van’s full appear-

ance, and the “textual context” of how the speech was com-

municated is key. See Bellrichard, 994 F.2d at 1323.

The actions of the officers who actually saw the van and its

message make clear that reasonable people would not have

understood — and did not understand — the speech as a true

threat. After first viewing the van, Sergeant Hooker inter-

preted the message as satire until Captain Johnson instructed

him to treat it as a crime. The officers at the scene did not fol-

low bomb threat procedures, indicating that they saw no rea-

son to take the message seriously. It makes no difference that

the speech, taken literally, may have communicated a threat.

See Watts, 394 U.S. at 708. Understood in its full context, no

reasonable person would have expected that viewers would

interpret Fogel’s political message as a true threat of serious

harm. See Lovell, 90 F.3d at 372.

Applying the subjective standard, we hold that Fogel did

not intend his statements to threaten serious harm to anyone.

In his deposition, he explained that his goal was:

to express disagreement . . . with the Patriot Act, and

I wanted to display the need to express yourself and

use your rights, especially when something like the

Patriot Act is working to directly take those rights

away and let people know that you still want those

rights by exercising them. I wanted to express frus-

tration . . . and I figured this was a safe, healthy way

to do that.

Fogel also explained how he envisioned others would inter-

pret the van:

It seemed to me impossible to construe . . . that

someone was actually an Islamic extremist with any

reason or desire to do harm to anyone. It seemed

FOGEL v. COLLINS 7697

pretty plain to me that it’s a joke and it’s ironic and

it’s backwards, and that’s just to get people to think

about how backwards some of our government’s rea-

soning is.

[7] There is virtually no evidence that Fogel subjectively

intended the speech as a true threat of serious harm. See Cas-

sel, 408 F.3d at 633. The officers noted that Fogel was “mild-

mannered” and did not have a threatening presence. None of

the officers interpreted Fogel’s words or actions as threaten-

ing. Even Fogel’s purported statement in the parking lot that

he intended to scare people — to scare them into thinking, or

to scare them in the same way the United States government

is scaring Iraqi citizens — is consistent with Fogel’s conten-

tion that he intended his message to be satirical. Fogel’s goal

of shocking or “scaring” observers of the van into reflecting

on political events is exactly the kind of “unpleasantly sharp

attack[ ] on government and public officials” the First

Amendment welcomes and protects. See N.Y. Times Co., 376

U.S. at 270.

[8] We conclude that Fogel’s message constituted, at most,

somewhat hyperbolic rhetoric on a matter of public concern.

The message was not directed toward any particular person

and was communicated as a protest against government pol-

icy. Fogel wanted to use his First Amendment rights to protest

against what he saw as an attack on those very rights.

[9] We therefore conclude that the message communicated

on Fogel’s van was protected by the First Amendment, and

that the police officers of Grass Valley violated Fogel’s First

Amendment rights by arresting him, impounding the van, and

requiring him to paint over the message before allowing him

to retrieve the van.

B. Clearly Established

We next address whether the law, as applied to the facts of

this case, was clearly established with sufficient clarity at the

7698 FOGEL v. COLLINS

time of the incident to permit an award of damages against the

individual officers. We agree with the district court that it was

not.

[10] Our inquiry focuses on the precise circumstances of a

particular case as well as the state of the law at the time of the

alleged violation. Inouye, 504 F.3d at 712. We engage in an

“objective but fact-specific inquiry.” Id. The standard for

qualified immunity is objective. An officer’s subjective

understanding of the constitutionality of his or her conduct is

irrelevant. Id.; see also Harlow, 457 U.S. at 818. For a legal

principle to be clearly established, it is not necessary that “the

very action in question has previously been held unlawful.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). Rather, a

clearly-established right exists if “in the light of pre-existing

law the unlawfulness [is] apparent.” Wilson v. Layne, 526

U.S. 603, 615 (1999) (quoting Anderson, 483 U.S. at 640). In

other words, there must be some parallel or comparable fac-

tual pattern to alert an officer that a series of actions would

violate an existing constitutional right, but the facts of already

decided cases do not have to match precisely the facts with

which an officer is confronted. See Hydrick v. Hunter, 500

F.3d 978, 989 (9th Cir. 2007). The matching of fact patterns

demands only a level of particularity such “ ‘that a reasonable

official would understand that what he is doing violates th[e]

right.’ ” Saucier, 533 U.S. at 202 (quoting Anderson, 483 U.S.

at 640). “[I]f officers of reasonable competence could dis-

agree on [the] issue, immunity should be recognized.” Malley

v. Briggs, 475 U.S. 335, 341 (1986); see Coady v. Steil, 187

F.3d 727, 734 (7th Cir. 1999).

Although we have concluded that the officers violated the

First Amendment when they arrested Fogel, impounded his

van, and forced him to remove his message, we cannot say

that existing precedents would have alerted the police officers

that we would find a violation. See Galvin v. Hay, 374 F.3d

739, 745-46 (9th Cir. 2004); see also Clement v. City of Glen-

dale, 518 F.3d 1090, 1096 (9th Cir. 2008).

FOGEL v. COLLINS 7699

[11] As the district court pointed out, in no case had a court

held on identical or closely comparable facts that the speech

was protected by the First Amendment. That is, in May 2004,

when the officers acted, there was no reported case in which

a person in the post-September 11 environment satirically

proclaimed himself or herself to be a terrorist in possession of

weapons of mass destruction. We do not, by our invocation of

September 11, 2001, suggest that the First Amendment pro-

vides less protection than before September 11. Rather, we

recognize that what might previously have been understood as

relatively harmless talk might, in the immediate aftermath of

September 11, have been understood to constitute a real

threat.

Fogel cites Watts as a case that should have put the officers

on notice that they were infringing his First Amendment

rights. In Watts, the protester’s “threat” against President

Johnson was uttered at a large political rally and was condi-

tional. Watts, 394 U.S. at 707. However, none of the officers

involved with Watts took his statements seriously, and his

audience also understood his rhetoric as pure hyperbole to

make a political point. See id. at 707-08.

[12] But in this case, at least a portion of Fogel’s audience

reacted very differently. The caller who alerted the police to

the presence of Fogel’s van in the parking lot was clearly

worried by the language on the van and by the threat that it

or its owner might pose. Further, there is evidence that Cap-

tain Johnson, and eventually Sergeant Hooker, felt that the

van (and its owner) were making a true threat. Sergeant

Hooker described his belief that Fogel could be “unstable,”

and Officer Perry relayed to the other officers the information

that the DHS thought that Fogel was a “local nut.” The test

for qualified immunity is whether any reasonable officer

would make the constitutional error in question, not whether

a reasonable person would. We cannot conclude that at the

time of the incident, all reasonable officers would have con-

cluded that Fogel’s speech was protected by the First Amend-

7700 FOGEL v. COLLINS

ment. See Malley, 475 U.S. at 341; see also Egolf v. Witmer,

421 F. Supp. 2d 858, 860-61, 876-78 (E.D. Pa. 2006) (con-

cluding that qualified immunity protected state police troopers

from liability for arresting nearly-nude protesters at a political

rally); Olaniyi v. District of Columbia, 416 F. Supp. 2d 43, 55

(D.D.C. 2006) (finding that the First Amendment did not pro-

tect the plaintiff’s “political speech devised in response to the

war on terror” (internal quotation marks and citations omit-

ted)).

[13] We therefore hold that despite their violation of

Fogel’s First Amendment rights, qualified immunity protects

the individual officers from an award of damages.

IV. Municipal Liability

Fogel also challenges the district court’s ruling that the

Grass Valley Police Department was entitled to summary

judgment. See Fogel, 415 F. Supp. 2d at 1089-90. A munici-

pality is liable for the violation of constitutional rights if a city

officer’s conduct is directly attributable to the city’s policy or

custom. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S.

658, 691-94 (1978). The district court held that Fogel offered

no proof of an unconstitutional official policy and failed to

show that any of the defendant officers were policymaking

officials. Fogel, 415 F. Supp. 2d at 1090. We agree.

A municipality cannot be held liable under a respondeat

superior theory. Monell, 436 U.S. at 691. But liability can

attach if the municipality caused a constitutional violation

through official policy or custom, even if the constitutional

violation occurs only once. See id. at 694; Christie v. Iopa,

176 F.3d 1231, 1235 (9th Cir. 1999). For purposes of liability

under Monell, a “policy” is “a deliberate choice to follow a

course of action . . . made from among various alternatives by

the official or officials responsible for establishing final pol-

icy with respect to the subject matter in question.” Fairley v.

Luman, 281 F.3d 913, 918 (9th Cir. 2002) (per curiam) (cita-

FOGEL v. COLLINS 7701

tion and internal quotation marks omitted; alteration in origi-

nal). A municipality is also liable if a policymaking official

delegates his or her discretionary authority to a subordinate,

and the subordinate uses that discretion. See Menotti v. City

of Seattle, 409 F.3d 1113, 1147-48 (9th Cir. 2005); City of St.

Louis v. Praprotnik, 485 U.S. 112, 126-27 (1988).

[14] Fogel has provided no evidence that Grass Valley

maintained an official policy of suppressing political speech

protected by the First Amendment or that any final policy-

making official made a decision to violate his rights. Fogel

also has not established that any of the officers involved with

his arrest were official policymakers with final decision mak-

ing authority for Grass Valley, or that any official policy-

maker “either delegated that authority to, or ratified the

decision of, a subordinate.” See Ulrich v. City & County of

San Francisco, 308 F.3d 968, 985 (9th Cir. 2002); see also

Monell, 436 U.S. at 694; Praprotnik, 485 U.S. at 126-27. His

municipal liability claim therefore fails.

V. Conclusion

We hold that the individual defendants in this case violated

Fogel’s First Amendment rights by arresting him, impounding

his van, and making him paint over his message. We affirm

the district court’s decision that qualified immunity protects

these defendants from a claim for damages. We also affirm

the district court’s decision that the City of Grass Valley did

not violate Fogel’s First Amendment rights.

AFFIRMED.