Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Department

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTER FOR BIO-ETHICAL REFORM, 

INC.; PAUL KULAS; THOMAS

PADBERG,

Plaintiffs-Appellants,

v.

LOS ANGELES COUNTY SHERIFF

DEPARTMENT; LEROY D. BACA, in

his official capacity as Sheriff;

XAVIER R. AGUILAR, individually;

XAVIER R. AGUILAR, in his official No. 05-55294

capacity as Sergeant; DAVE

DESPOT, individually; DAVE  D.C. No.

CV-03-00386-GLT

DESPOT, in his official capacity as

Deputy; MARK DARLING, OPINION

individually; MARK DARLING, in his

official capacity as Deputy; MARK

C. REPCIK, individually; MARK C.

REPCIK, in his official capacity as

Deputy; ART ROBERTS,

individually; ART ROBERTS, in his

official capacity as an

administrative official, Dodson

Middle School,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Gary L. Taylor, District Judge, Presiding

Argued and Submitted

February 12, 2007—Pasadena, California

7983

7984 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

Filed July 2, 2008

Before: Harry Pregerson, William A. Fletcher, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Pregerson

7988 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

COUNSEL

Robert J. Muise (argued), Thomas More Law Center, Ann

Arbor, Michigan; James A. Hayes, Cummins & White LLP,

Newport Beach, California, for the plaintiffs-appellants.

Jennifer A.D. Lehman (argued), Deputy County Counsel,

Raymond G. Fortner, County Counsel, Los Angeles, Califor-

nia, for defendants-appellees Los Angeles County Sheriff’s

Department.

Julie Mullane (argued), Gary Robert Gibeaut, Nancy Mahan-

Lamb, Lisa J. Brown, Gibeaut, Mahan & Briscoe, Los Ange-

les, California, for defendant-appellee Art Roberts.

OPINION

PREGERSON, Circuit Judge:

Plaintiffs drove a truck that displayed enlarged, graphic

photographs of early-term aborted fetuses around the perime-

ter of a public middle school in Rancho Palos Verdes, Califor-

nia. Deputy Sheriffs were dispatched to the school. Plaintiffs

contend that the officers violated their First Amendment

rights by ordering Plaintiffs to remove their truck from an

area adjacent to the school. Plaintiffs also contend that the

officers violated their Fourth Amendment rights by detaining

Plaintiffs for an unreasonable time and by searching their

vehicle without consent.

Plaintiffs brought this action under 42 U.S.C. § 1983 seek-

ing damages and injunctive and declaratory relief for violation

of their First and Fourth Amendment rights. The district court

held that the Deputy Sheriffs and Dodson Middle School

Assistant Principal Art Roberts were entitled to qualified

immunity and dismissed the damages claims against them. In

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 7989

addition, the court dismissed the lawsuit against Los Angeles

County Sheriff Leroy D. Baca, a redundant defendant. After

considering cross-motions for summary judgment, the district

court granted summary judgment in favor of Defendants on

the remaining First and Fourth Amendment claims. Plaintiffs

timely appealed these orders.

We have jurisdiction under 28 U.S.C. § 1291. For the rea-

sons set forth below, we reverse the district court’s orders (1)

granting Defendants’ summary judgment motion on all the

issues in the case, and (2) denying Plaintiffs’ summary judg-

ment motion with respect to Plaintiffs’ First Amendment

claim and Fourth Amendment Claim for unreasonable deten-

tion. We affirm the district court’s order (1) dismissing Sher-

iff Leroy D. Baca and (2) granting qualified immunity to the

individual defendants on the First Amendment claim. We

remand for the district court to resolve Plaintiffs’ conspiracy

claim and request for injunctive relief.

I. BACKGROUND

A. Facts

Plaintiff Center for Bio-Ethical Reform (Bio-Ethical

Reform) is a non-profit organization whose main purpose is

to promote “prenatal justice and the right to life for the

unborn, the disabled, the infirm, the aged, and all vulnerable

peoples through education and the development of innovative

educational programs.” One of the educational programs is

called the “Reproductive Choice Campaign.” With this cam-

paign, Bio-Ethical Reform seeks to “expose as many people

as possible to the reality of abortion” by displaying large,

graphic photographs of first-term aborted fetuses on the sides

of trucks. The trucks often drive on surface streets and free-

ways, but Bio-Ethical Reform employees and volunteers

sometimes take the trucks to specified places to target particu-

lar audiences.

7990 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

Middle school and high school students are a common tar-

get audience. Bio-Ethical Reform conducts its campaign at

such schools because it believes its message will discourage

teenage abortions. Bio-Ethical Reform also believes that “stu-

dents who are old enough to have an abortion are old enough

to see one.” Bio-Ethical Reform personnel arrive at the start

of the academic day so that students will see Bio-Ethical

Reforms’s enlarged photographic images of first-term aborted

fetuses as they arrive for school.

Gregg Cunningham, Bio-Ethical Reform’s Executive

Director, acknowledged in his deposition that he has seen stu-

dents “faint,” “become physically ill,” “weep,” “avert their

gaze,” and “leave the room” in response to these pictures.

Cunningham said that the “typical” reaction is disbelief. He

defended Bio-Ethical Reform’s display of aborted fetuses,

saying that “[s]tudents are routinely exposed to disturbing

images, whether it’s airlines exploding into skyscrapers or

choose your atrocity.” Cunningham also asserted that expos-

ing children to such pictures is the best way to teach them

about the ethical issues involving abortion: “you can’t teach

inexpressively horrific historical fact in exclusive reliance on

the written or spoken word. Teachers who teach about racial

injustice use pictures of black people being beaten to their

knees for trying to register to vote.”

On March 24, 2003, Plaintiffs Paul Kulas, a Bio-Ethical

Reform employee, and Thomas Padberg, a Bio-Ethical

Reform volunteer, drove to Dodson Middle School in Rancho

Palos Verdes, California. Kulas drove a truck that displayed

the photographic images of aborted fetuses and Padberg drove

an escort “security vehicle.” The security vehicle was a white

Ford Crown Victoria sedan equipped with a security cage,

red-and-amber flashing lights, push bars, and antennae

mounted on the roof. The two men arrived at the school at

about 7:30 a.m. — about thirty minutes before classes began.

They then drove on public streets around the perimeter of the

school.

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 7991

Plaintiffs’ graphic display quickly caused concern among

school officials. Defendant Art Roberts, an assistant principal

at Dodson Middle School, identified traffic as one of his pri-

mary concerns. According to him, 85 to 95 percent of Dod-

son’s 2000 students arrive by bus or car between 7:15 a.m.

and 8:00 a.m. The students’ arrival causes “heavy traffic”

around the school. This traffic can become a safety hazard

when drivers or pedestrians become upset, angry, or dis-

tracted. At a preliminary hearing, Roberts testified that during

the time he had worked at Dodson Middle School, vehicles on

streets around the school had struck five children and killed

two.

On the day Plaintiffs were at Dodson Middle School, Assis-

tant Principal Roberts observed some children stopping on the

sidewalks and staring at the photographs of aborted fetuses,

while others momentarily stood in the middle of the street.

Faculty members also reported “abnormal” difficulty getting

children onto the campus.

Assistant Principal Roberts identified additional concerns.

He saw a number of children express anger over Plaintiffs’

graphic display. He also overheard a group of boys planning

to throw rocks at the truck. The group disbanded only after

Roberts confronted them. Assistant Principal Roberts

observed two or three girls crying. He also said that at least

one class spent time discussing the truck’s displayed images

of aborted fetuses. Nevertheless, Assistant Principal Roberts

said the school had a “fairly normal opening” and that all stu-

dents he could see were on the campus by the start of classes

at 8:01 a.m.

School officials contacted the Sheriff’s Department at

about 7:50 a.m. The dispatcher sent a text message to Deputy

Sheriffs Mark Darling and Mark Repcik, who were driving

separate vehicles. The message stated that an “[a]nti-abortion

truck with offensive language and pictures is circling the

school and videotaping the school and surrounding area.” The

7992 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

Sheriff’s Department station desk also radioed Deputy Repcik

and told him a “large white truck [was] driving [around] the

middle school [with] very graphic pictures on the sides and

[was] disrupting the school.”

At 8:05 a.m., Deputy Sheriffs Darling and Repcik stopped

Plaintiff Kulas, who was driving the display truck, and Plain-

tiff Padberg, who was driving the “security vehicle.” Accord-

ing to Kulas, Deputy Darling told him that the Deputy

Sheriffs stopped the two vehicles because they were “driving

these pictures around the school with offensive language, and

. . . scaring kids . . . .” During the stop, no Deputy Sheriff

drew his gun or handcuffed Kulas or Padberg. The deputies

allowed Kulas and Padberg to move freely about the immedi-

ate area and talk to each other for the duration of the stop.

Thirty minutes later, Deputy Sheriff Sergeant Xavier Agui-

lar arrived. According to Deputy Sheriffs Darling and Repcik,

they summoned Sergeant Aguilar, their supervisor, to the

scene because they had never dealt with a comparable situa-

tion. Deputy Sheriff Dave Despot, the liaison to Dodson Mid-

dle School, was also summoned to the scene. He arrived

between fifteen and thirty minutes after Aguilar arrived. Des-

pot took photographs of the security vehicle and the truck. He

then went into the school to speak with Assistant Principal

Roberts.

At some point, Deputy Sheriff Darling entered the security

vehicle to activate the switch for the flashing red-and-amber

lights. Then, with Padberg’s permission, Darling searched the

vehicle for weapons. The record does not indicate whether

there were two discrete searches or only one.

Eventually, Assistant Principal Roberts accompanied Dep-

uty Despot back to the scene, and, after reading California

Penal Code § 626.8 to Kulas and Padberg, told them that they

must leave the area around the school. Kulas and Padberg

promptly left the area at 9:20 a.m. Plaintiffs assert that,

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 7993

because of fear of arrest, they have taken their Reproductive

Choice Campaign to only one other school in Los Angeles

County since the March 24, 2003 incident.

B. Procedural History

Plaintiffs filed this 42 U.S.C. § 1983 suit on April 17, 2003.

Their complaint seeks nominal damages from Assistant Prin-

cipal Roberts, and from Deputy Sheriffs Repcik, Darling,

Despot, and Sergeant Aguilar. Plaintiffs sought an injunction

to restrain the four Deputy Sheriffs, Assistant Principal Rob-

erts, Sheriff Baca (in his official capacity), and the Los Ange-

les County Sheriff’s Department from enforcing § 626.8

against Plaintiffs’ abortion speech activities. Finally, Plaintiffs

sought a declaration that § 626.8 is unconstitutional as applied

to Plaintiffs’ activities. Plaintiffs do not seek monetary dam-

ages from the Sheriff’s Department.

The district court granted the individual defendants’1

motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), holding that these defendants were entitled to quali-

fied immunity.2 The district court dismissed Sheriff Baca as

a redundant defendant. On February 10, 2005, the district

court granted summary judgment for all defendants and

denied summary judgment for Plaintiffs. This timely appeal

followed.

II. STANDARD OF REVIEW

A district court’s decision on cross-motions for summary

1

The phrase “individual defendants,” refers to the defendants sued in

their individual capacity: Deputies Repcik, Darling and Despot, Sergeant

Aguilar, and Assistant Principal Roberts.

2

The district court did not specify whether qualified immunity applied

only to the First Amendment claims or to all claims. The court declined

to clarify the scope of its grant of immunity in the summary judgment

order, instead holding that the issue was moot.

7994 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

judgment is reviewed de novo. ACLU of Nev. v. City of Las

Vegas, 466 F.3d 784, 790 (9th Cir. 2006). Construing the evi-

dence in the light most favorable to the nonmoving party, we

must determine whether genuine issues of material fact exist.

Id. When presented with cross-motions for summary judg-

ment, we review each motion for summary judgment sepa-

rately, giving the nonmoving party for each motion the benefit

of all reasonable inferences. Id. at 790-91.

III. FIRST AMENDMENT ISSUES

Plaintiffs contend that the application of § 626.8 under the

circumstances presented here violated their First Amendment

rights. We have serious concerns about the constitutionality of

the statute as applied. We need not decide, however, whether

the statute as applied is unconstitutional because we conclude

that the California courts would construe the statute narrowly

so as not to apply to Plaintiffs’ conduct.

A. Applicability of Penal Code § 626.8

1. First Amendment concerns

Plaintiffs sought to express their anti-abortion message on

a public street, a traditional public forum. See Frisby v.

Schultz, 487 U.S. 474, 481 (1988) (“[A]ll public streets are

held in the public trust and are properly considered traditional

public fora.”); see also PeTA v. Rasmussen, 298 F.3d 1198,

1204 (10th Cir. 2002) (holding that the sidewalks near a pub-

lic school are a traditional public forum). Generally, content-

based speech restrictions in public fora are subject to strict

scrutiny. Flint v. Dennison, 488 F.3d 816, 830 (9th Cir. 2007).

[1] The government may, however, impose reasonable

“time, place, or manner” regulations on speech in public fora,

provided the regulations “are justified without reference to the

content of the regulated speech, . . . are narrowly tailored to

serve a significant governmental interest, and . . . leave open

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 7995

ample alternative channels for communication of the informa-

tion.” Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989) (quoting Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288, 293 (1984)). We therefore first address whether

the application of § 626.8 to Plaintiffs’ display of photographs

of aborted fetuses outside Dodson Middle School would qual-

ify as a content-neutral time, place, or manner regulation. We

conclude that it is questionable whether the statute, if it

applies to Plaintiffs’ conduct in this case, would satisfy the

first criterion — that it be “justified without reference to the

content of the regulated speech.” Id.

[2] We previously noted that a law “is content-based if

either the main purpose in enacting it was to suppress or exalt

speech of a certain content, or it differentiates based on the

content of speech on its face.” ACLU, 466 F.3d at 793. Defen-

dants argue that § 626.8 is content-neutral because it is justi-

fied by a purpose unrelated to the content of the message —

namely, the “compelling interest in having an undisrupted

school session conducive to the students’ learning.” See

Grayned v. City of Rockford, 408 U.S. 104, 119 (1972).3

[3] The language of § 626.8 does not indicate an intent to

suppress speech of a certain content. That lack of purpose,

however, does not render application of the statute to Plain-

tiffs’ speech content-neutral. If the statute, as read by the

police officers on the scene, would allow or disallow speech

3

We note that in this case, unlike in Grayned, the school setting alone

does not justify the restriction applied to Plaintiffs. Grayned identified dis-

ruptions of “normal school activities” as “boisterous demonstrators who

drown out classroom conversation, make studying impossible, block

entrances, or incite children to leave the schoolhouse.” Grayned, 408 U.S.

at 118-19. Further emphasizing this focus on classroom interruption,

Grayned noted with approval that the ordinance did not restrict “expres-

sive activity before or after the school session, while the student/faculty

‘audience’ enters and leaves the school,” id. at 120 — the precise situation

presented here. The school setting here thus provides no authority to

engage in otherwise impermissible restrictions.

7996 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

depending on the reaction of the audience, then the ordinance

would run afoul of an independent species of prohibitions on

content-restrictive regulations, often described as a First

Amendment-based ban on the “heckler’s veto.”4 See Bachel-

lar v. Maryland, 397 U.S. 564, 567 (1970) (“[I]t is firmly set-

tled that under our Constitution the public expression of ideas

may not be prohibited merely because the ideas are them-

selves offensive to some of their hearers, or simply because

bystanders object to peaceful and orderly demonstrations.”)

(quotation marks and citations omitted); see also, e.g., Good-

ing v. Wilson, 405 U.S. 518, 527 (1972); Cox v. Louisiana,

379 U.S. 536, 551-52 (1965); Terminiello v. City of Chicago,

337 U.S. 1, 4-5 (1949). Thus, as the Supreme Court has made

clear, the government cannot silence messages simply

because they cause discomfort, fear, or even anger:

[I]n our system, undifferentiated fear or apprehen-

sion of disturbance is not enough to overcome the

right to freedom of expression. Any departure from

absolute regimentation may cause trouble. Any vari-

ation from the majority’s opinion may inspire fear.

Any word spoken, in class, in the lunchroom, or on

the campus, that deviates from the views of another

person may start an argument or cause a disturbance.

But our Constitution says we must take this risk . . . .

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,

508 (1969).

[4] The disruptions caused by the Plaintiffs’ conduct were

all a result of the students’ reactions to Plaintiffs’ message.

Assistant Principal Roberts stated that he saw two or three

girls cry and that he heard several angry boys discuss throw-

4

The term “heckler’s veto” first appeared in a footnote in Brown v. Lou-

isiana, 383 U.S. 131, 133 n.1 (1966). We use this term to describe restric-

tions on speech that stem from listeners’ negative reactions to a particular

message.

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 7997

ing rocks at Plaintiffs’ truck. Roberts also stated that the fac-

ulty had more difficulty than normal getting children into

classes. There is some evidence that students discussed Plain-

tiffs’ display of images of first-term aborted fetuses during

class time. Finally, the children did not go into the school as

quickly as usual. Some students stopped in the street momen-

tarily and stared at the truck, causing traffic congestion. These

incidents were all reactions to the message displayed on

Plaintiffs’ truck.

In Forsyth County v. Nationalist Movement, 505 U.S. 123,

134 (1992), the Supreme Court emphasized that “[l]isteners’

reaction to speech is not a content-neutral basis for regula-

tion” — in other words, the First Amendment does not permit

a heckler’s veto. Forsyth County struck down an ordinance as

unconstitutionally content-based because the statute based

parade fees on the estimated cost of maintaining public order

during the event. Because the size of the fee “depend[ed] on

the administrator’s measure of the amount of hostility likely

to be created by the speech based on its content,” the ordi-

nance unconstitutionally burdened speech that was “unpopu-

lar with bottle throwers.” Id.

As the cases cited above indicate, Forsyth County was not

the first or only case to hold that a regulation that depends

upon listeners’ reaction to speech is not a content-neutral reg-

ulation. In Cox v. Louisiana, for example, the Supreme Court

held that police could not justify shutting down a civil rights

demonstration on public sidewalks as a breach of the peace on

the ground that there was a “fear of violence . . . based upon

the reaction of the group of white citizens looking on from

across the street.” 379 U.S. at 550. Like Forsyth County, Cox

rested on the premise that “constitutional rights may not be

denied simply because of hostility to their assertion or exer-

cise.” Id. at 551 (quoting Watson v. City of Memphis, 373

U.S. 526, 535 (1963)).

7998 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

The venerable heckler’s veto line of cases does not align

perfectly with a standard this court has recently used to help

determine whether a regulation is content-based: whether “a

law enforcement officer must read a [communication’s] mes-

sage to determine if the [communication] is exempted from

the ordinance.” ACLU, 466 F.3d at 795-96.5

[5] The “read the message” test, however, cannot encom-

pass the universe of content-based statutes because the test

does not fully account for the heckler’s veto line of cases.

Here, the government did not prospectively gauge the effect

of the message (and ban it accordingly), but instead waited

for, and then responded to, listeners’ reactions. Whether pro-

spectively, as in Forsyth County, or retrospectively, as in the

case before us, the government may not give weight to the

audience’s negative reaction.6

[6] To account for Cox and similar cases, our inquiry must

focus on the reason for the government’s restriction of speech.

If listeners react to speech based on its content and the gov-

ernment then ratifies that reaction by restricting the speech in

response to listeners’ objections, then the restriction is

content-based. Cf. Ovadal v. City of Madison, 469 F.3d 625,

630 (7th Cir. 2006) (holding that the removal of a protester

carrying large signs on busy highway overpass is content-

based if his “message angered drivers who then reacted and

were distracted from the task of driving safely” but content-

neutral if his “presence on that day and under those driving

conditions created a ‘spectacle’ that led some drivers to be

distracted from the task of safely navigating the Beltline”)

(emphases in original).

5

Whether an officer must read a message is persuasive evidence of an

impermissible content-based purpose, but is not dispositive. ACLU, 466

F.3d at 796 n.12.

6

There is, of course, an exception for certain “fighting words.” See Cha-

plinsky v. New Hampshire, 315 U.S. 568, 573 (1942).

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 7999

Nor is the reaction of listeners a secondary effect of speech

that can be regulated under City of Renton v. Playtime The-

atres, Inc., 475 U.S. 41, 46 (1986). See Boos v. Barry, 485

U.S. 312, 321 (1988) (“The emotive impact of speech on its

audience is not a ‘secondary effect.’ ”); see also Crawford v.

Lungren, 96 F.3d 380, 385 (9th Cir. 1996) (“The Supreme

Court has defined secondary effects as being correlated with,

but not directly a consequence of, the impact of the speech.”)

(emphasis added).

Section 626.8, if it applied to Plaintiffs’ conduct in this

case, would appear to be just the kind of accession to the

heckler’s veto outlawed by the case law. Plaintiffs’ speech

was permitted until the students and drivers around the school

reacted to it, at which point the speech was deemed disruptive

and ordered stopped under § 626.8. This application of the

statute raises serious First Amendment concerns.7

7

We recognize that one of our sister circuits, in a case discussing a

nearly identical statute, has held otherwise. In PeTA v. Rasmussen, 298

F.3d 1198 (10th Cir. 2002), an animal-rights organization staged a protest

outside of a junior high school shortly before the end of classes; a counter-

protest was also held. Id. at 1201. “The protests were not noisy, but some

students allegedly were distracted, stayed late, missed their rides, or

sought to interact with the protesters.” Id. at 1202. The police directed the

protesters to cease, citing a state statute substantively mirroring § 626.8.

The statute did not apply to junior high schools, however, and the police

subsequently admitted their mistake.

The Tenth Circuit nonetheless held that the misapplication of the statute

was content-neutral:

Although the defendants misapplied the statute to PeTA, their

misapplication of the statute was unrelated to the content of

PeTA’s speech. The school also applied the ban to META [the

counter-protesters], which expressed the opposite message from

PeTA. Defendants’ actions were thus content-neutral.

Id. at 1204. We disagree with this analysis. That the statute was applied

to protesters on both sides of the issue demonstrates only that it was

viewpoint-neutral. See Boos, 485 U.S. at 319. Shutting down dueling pro-

tests does not discriminate based on viewpoint, but is nonetheless a

content-based heckler’s veto if the reason for the restriction was that

bystanders were uncomfortable with the controversial content of the mes-

sages.

8000 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

We are mindful that this case involves a special circum-

stance, the presence of children. In particular, the evidence

suggests that children were distracted by the Plaintiffs’ pic-

tures, and this distraction perhaps posed a danger as students

crossed the streets around the school. Children may well be

particularly susceptible to distraction or emotion in the face of

controversial speech, and may not always be expected to react

responsibly. These considerations, among others, might con-

ceivably support the proposition that the heckler’s veto princi-

ple is less sweeping where the targeted audience is children.

There is, however, no precedent for a “minors” exception

to the prohibition on banning speech because of listeners’

reaction to its content.8 It would therefore be an unprece-

dented departure from bedrock First Amendment principles to

allow the government to restrict speech based on listener reac-

tion simply because the listeners are children. At the least,

applying § 626.8 to Plaintiffs’ speech in this case raises a

novel constitutional issue. Unless we create a new exception

to the “heckler’s veto” doctrine (which we do not do), apply-

ing § 626.8 to Plaintiffs’ speech would be unconstitutional.

We decline to create such an exception, in part because we

can reasonably construe § 626.8 as not applicable to the pres-

ent circumstances.9 Where a construction of a statute would

8

There is, however, at least one circumstance in which First Amend-

ment standards have been specially tailored to protect children. See Gins-

berg v. New York, 390 U.S. 629, 640-41 (1968) (relying on the state’s

interest “to protect the welfare of children and to see that they are safe-

guarded from abuses which might prevent their growth into free and inde-

pendent well-developed men[, women] and citizens” to hold that it is

permissible to protect children from being exposed to pornography that

was not obscene) (internal quotations omitted).

9

The California legislature may elect to draft a statute prohibiting dis-

ruptive messages outside school buildings where the disruption threatens

the physical safety of school children while they are coming to, leaving,

or attending school. We do not have before us, and therefore do not decide

the constitutionality of, such a statute.

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8001

raise serious constitutional problems, courts “will construe the

statute to avoid such problems unless such construction is

plainly contrary to the intent of [the legislature].” Edward J.

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades

Council, 485 U.S. 568, 575 (1988).

Here, if § 626.8 applies only to disruptions caused by the

manner and not the content of speech, our First Amendment

concerns are resolved. A statute that restricts speech only

when it is disruptive because of its manner, not its content, is

an example of content-neutral regulation that has been

affirmed time and again. In Grayned, for example, in dealing

with an anti-noise ordinance, the Supreme Court upheld the

regulation of speech that would — because of its high-decibel

manner of communication, not its content — prevent class-

room teaching or studying.10 408 U.S. at 119. Similarly, we

have narrowed an injunction prohibiting “shouting, scream-

ing, chanting, or yelling” during demonstrations outside an

abortion clinic to specify that such conduct be enjoined only

if it is “in a volume that substantially interferes with the pro-

vision of medical services within the [clinic].” Portland Femi-

nist Women’s Health Ctr. v. Advocates for Life, Inc., 859 F.2d

681, 686-87 (9th Cir. 1988). This narrow interpretation

ensured that the speech was enjoined only if its manner

caused disruption to the clinic’s services, rather than if its

10

The ordinance at issue in Grayned is strikingly similar to § 626.8. The

ordinance there prohibited “willfully mak[ing] or assist[ing] in the making

of any noise or diversion which disturbs or tends to disturb the peace or

good order of such school session or class thereof.” 408 U.S. at 108. The

Supreme Court rejected a constitutional challenge because it concluded

that the state supreme court would construe the ordinance narrowly to pro-

hibit “only actual or imminent interference with the ‘peace or good order’

of the school.” Id. at 111-12. It further held that the ordinance was not “a

vague, general ‘breach of the peace’ ordinance, but a statute written spe-

cifically for the school context, where the prohibited disturbances are eas-

ily measured by their impact on the normal activities of the school.” Id.

at 112. So construed, the ordinance “does not permit punishment for the

expression of an unpopular point of view.” Id. at 113.

8002 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

content upset the patients or staff. Therefore, we must address

whether § 626.8 applies only where the manner, not the con-

tent, of speech near schools is distracting to listeners. If so, we

need not decide the constitutionality of a content-restrictive

statute, for such a statute is not before us.

2. Construing § 626.8

In similar circumstances — that is, to avoid deciding seri-

ous constitutional issues — federal courts have narrowly con-

strued state or local statutes. See, e.g., Frisby, 487 U.S. at

482; Phelps v. Hamilton, 59 F.3d 1058, 1070 (10th Cir. 1995)

(“[Although] federal courts do not have the power to narrow

a state law by disregarding plain language in the statute just

to preserve it from constitutional attack . . . . , we are permit-

ted to construe ambiguous state statutes and to extrapolate the

true meaning of such statutes according to traditional rules of

statutory construction, and then to judge the constitutionality

of such statutes as so construed.”); Cohen v. City of Des

Plaines, 8 F.3d 484, 493 (7th Cir. 1993) (construing a city

ordinance narrowly to avoid Establishment Clause problem);

see also Grayned, 408 U.S. at 111-12 (construing local ordi-

nance narrowly after concluding that the state supreme court

would so construe the ordinance). In our view, the Supreme

Court of California would, were the issue presented to them,

construe § 626.8 to apply only to interference or disruption

caused by the manner of a person’s expressive conduct.

[7] California Penal Code § 626.8 provides, in relevant

part:

(a) Any person who comes into any school building

or upon any school ground, or street, sidewalk or

public way adjacent thereto, without lawful business

thereon, and whose presence or acts interfere with

the peaceful conduct of the activities of the school or

disrupt the school or its pupils or school activities, is

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8003

guilty of a misdemeanor if he or she does any of the

following:

(1) Remains there after being asked to leave

by the chief administrative official of that

school or his or her designated representa-

tive, or by a . . . sheriff or deputy sheriff

....

(2) Reenters or comes upon that place

within seven days of being asked to leave

by a person specified in paragraph (1).

(3) Has otherwise established a continued

pattern of unauthorized entry.

This section shall not be utilized to impinge upon the

lawful exercise of constitutionally protected rights of

freedom of speech or assembly.

Cal. Penal Code § 626.8(a) (emphasis added).

As an initial matter, California courts regularly construe

arguably ambiguous statutes narrowly to avoid First Amend-

ment problems. In doing so, California courts have enunciated

the principle that “the court should construe the enactment so

as to limit its effect and operation to matters that may be con-

stitutionally regulated or prohibited.” People v. Superior

Court (Anderson), 151 Cal. App. 3d 893, 895-96 (Ct. App.

1984) (quoting Welton v. City of Los Angeles, 18 Cal. 3d 497,

505-06 (1976)). For example, in In re Manuel G., 16 Cal. 4th

805, 814 (1997), the California Supreme Court considered a

statute imposing criminal penalties on “[e]very person who

attempts, by means of any threat or violence, to deter or pre-

vent an executive officer from performing any duty imposed

upon such officer by law . . . .” The court agreed with lower

court decisions narrowly construing the statute: “To avoid the

risk of punishing protected First Amendment speech, . . . the

8004 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

term ‘threat’ has been limited to mean a threat of unlawful

violence used in an attempt to deter the officer.” Id. at 814-15;

see also People v. Zimmerman, 15 Cal. App. 4th Supp. 7, 12

(Ct. App. 1993) (“A statute challenged for overbreadth is not

void if its terms are reasonably susceptible to an interpretation

consistent with the Constitution.”); City & County of San

Francisco v. Eller Outdoor Adver., 192 Cal. App. 3d 643, 663

(Ct. App. 1987) (“It is the duty of the courts, wherever possi-

ble, to construe a statute in a manner which is reasonable,

consistent with the statutory purpose, and eliminates doubts as

to its constitutionality.”); Loska v. Superior Court, 188 Cal.

App. 3d 569, 584 (Ct. App. 1986) (“In order to save the ordi-

nance as a whole, we ‘construe the enactment so as to limit

its effect and operation to matters that may be constitutionally

. . . prohibited.’ ”) (alteration in original, quoting Welton, 18

Cal. 3d at 505).

[8] Here, a narrowing construction is invited by the plain

language of § 626.8: “This section shall not be utilized to

impinge upon the lawful exercise of constitutionally protected

rights of freedom of speech or assembly.” The California leg-

islature thus contemplated the possibility that § 626.8 might,

if construed broadly, apply to constitutionally protected

speech, and sought to prevent such an application. Further, the

exclusionary clause is drafted expansively, barring applica-

tions that “impinge,” rather than “violate,” protected speech.

Thus, the legislature seemingly meant to make the statute

inapplicable where First Amendment rights are possibly

affected, even if the statute could validly restrict those rights.11

11

The California legislature sometimes drafts First Amendment savings

clauses more narrowly, so as merely to limit the statute to what is constitu-

tionally permissible. For instance, California Penal Code § 420.1 provides

that it “shall not apply to . . . any person who is engaging in activities pro-

tected by the California Constitution or the United States Constitution.”

The same “shall not apply to” language is used in Penal Code §§ 602(o),

602.1, and 602.8. Similarly, Penal Code § 646.9(f)-(g) provides that

“[c]onstitutionally protected activity is not included within the meaning

of” certain terms in the statutory definition of the crime. This “shall not

apply” and “is not included” language is narrower than the broad “shall

not be used to impinge” language in the statute at issue here. We should

give effect to this difference.

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8005

[9] Finally, apart from the exclusionary clause, the lan-

guage of § 626.8 suggests that it was intended to apply to

manner rather than content of speech. Section 626.8 applies

where the “presence” or “acts” of a person “interfere[s]” with

the school’s activities or “disrupt[s] the school or its pupils.”

The terms “presence” and “acts” indicate that § 626.8 is con-

cerned with the physical aspects of a speaker’s behavior, not

with the content of his speech. Similarly, the words “inter-

fere” and “disrupt” are active verbs that focus on the behavior

of the speaker, not on the reaction of the listeners.

[10] As a whole, the language of § 626.8 does not evidence

any intent to criminalize a person’s behavior based on a lis-

tener’s reaction to the content of his speech. We thus con-

clude that the California courts would construe § 626.8 to

apply to speech only when the disruption caused by the

speaker is caused by the manner of the speech. Controversial

words and images that, because of their content, upset the lis-

tener and cause the listener to behave disruptively are not

covered by the statute.

[11] Under our narrow construction, § 626.8 does not apply

to Plaintiffs’ conduct in driving their trucks around Dodson

Middle School. That conduct was disruptive only because of

the audience’s reaction to the content of the speech. Children

became upset, a few boys talked about throwing rocks, other

children stood in the middle of the street and slowed the entry

of students into school, and at least one class spent time dis-

cussing the photos of fetuses instead of their prescribed

school work. All of these reactions were triggered by the

upsetting message on the truck — not by noise, or physical

obstruction, or any other aspect of Plaintiffs’ activities. Con-

struing § 626.8 as we do, the statute provided no basis to pro-

hibit Plaintiffs from continuing to drive their vehicles around

the school before classes began.

[12] Section 626.8 was the only authority cited by Defen-

dants in asking Plaintiffs to leave, and thus provided the only

8006 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

possible source of a significant governmental interest neces-

sary to restrict Plaintiffs’ speech in a public forum. See Ward,

491 U.S. at 791-92. Misapplying a statute is not a significant

governmental interest. Defendants have suggested no other

significant governmental interest to justify restricting Plain-

tiffs’ speech. We therefore hold that the Deputy Sheriffs vio-

lated Plaintiffs’ First Amendment right of free speech.

B. Qualified Immunity

We next consider whether the district court correctly deter-

mined that the individual defendants were entitled to qualified

immunity for Plaintiffs’ First Amendment claims.12 We

review a grant of qualified immunity de novo. Bias v. Moyni-

han, 508 F.3d 1212, 1218 (9th Cir. 2007).

[13] Qualified immunity involves a two-step inquiry: (1)

whether the officer’s conduct violated a constitutional right;

and (2) whether that right was clearly established when

viewed in the context of this case. See Ganwich v. Knapp, 319

F.3d 1115, 1119 (9th Cir. 2003) (citing Saucier v. Katz, 533

U.S. 194, 201 (2001)). As discussed above, Plaintiffs have

established that Defendants violated their constitutional

rights. We must therefore decide whether those rights were

clearly established.

A right is clearly established if its contours are “sufficiently

clear that a reasonable official would understand that what he

is doing violates that right.” Saucier, 533 U.S. at 202 (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Even if the

right is clear, however, we must determine whether the offi-

cers made a reasonable mistake about the law’s requirements.

See id. at 205.

12

As noted above, it is not entirely clear whether the district court

decided this issue on the merits.

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8007

[14] Here, it was clear that the officers could not apply a

time, place or manner restriction on speech to the Plaintiffs’

activities around the school without advancing any significant

state interest by doing so. But the officers could have made

a reasonable mistake in believing that § 626.8 applied to

Plaintiffs’ conduct and thus advanced a significant state inter-

est. Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th

Cir. 1994) (“[A]n officer who acts in reliance on a duly-

enacted statute or ordinance is ordinarily entitled to qualified

immunity.”). There was no case law determining whether

§ 626.8 does or does not apply to the circumstances the offi-

cers faced. See Dittman v. California, 191 F.3d 1020, 1027

(9th Cir. 1999) (defendant entitled to qualified immunity

where she “acted pursuant to a duly enacted state statute” and

“there was no clear case law in either the federal courts or the

state courts of California establishing that” the statute may not

be applied in the challenged manner); see also Way v. County

of Ventura, 445 F.3d 1157, 1166 (9th Cir. 2006) (Wardlaw,

J., concurring) (defendants entitled to qualified immunity

where they relied on police policy and state statute in con-

ducting unconstitutional strip-search because “the policy and

the state statute had not fallen into desuetude, nor were they

patently violative of fundamental constitutional principles”)

(citation and quotation marks omitted). And, although we

believe that our reading of the statute is one California courts

would adopt, that conclusion is premised in part on the prac-

tice of avoiding unconstitutional interpretations of statutes,

not solely on the language of the statute.

[15] Moreover, as we have noted, there is some question

whether the heckler’s veto consideration applies where the

target audience consists of children. As far as we have been

able to determine, there is no case law holding either that it

does or that it does not. In these circumstances, we cannot

conclude that the law was sufficiently clear that a reasonable

officer would know that it was unlawful to request the Plain-

tiffs to cease driving their truck around the area. See Hope v.

Pelzer, 536 U.S. 730, 741 (2002) (relevant inquiry is whether

8008 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

“the state of the law [at the relevant time] gave [defendants]

fair warning that their [conduct] was unconstitutional”); Por-

ter v. Bowen, 496 F.3d 1009, 1026 (9th Cir. 2007) (qualified

immunity where court itself “had to wrestle with difficult and

unsettled questions about the First Amendment interests

implicated by [plaintiffs’ conduct] and the weight of the coun-

tervailing interests asserted by the State”). We therefore

affirm the district court’s conclusion that the individual defen-

dants are entitled to qualified immunity on the First Amend-

ment claim.

C. Summary of First Amendment Claim

California Penal Code § 626.8, read as we believe a Cali-

fornia court would construe it, does not apply to Plaintiffs’

expressive activities in driving their trucks around Dodson

Middle School. Thus, the officers’ order that Plaintiffs leave

the area around Dodson Middle School violated Plaintiffs’

First Amendment rights. The individual defendants, however,

have qualified immunity from a damages action. As this

immunity does not extend to injunctive relief, see Hydrick v.

Hunter, 500 F.3d 978, 988 (9th Cir. 2007), we remand for the

district court to consider Plaintiffs’ request for injunctive

relief in light of our First Amendment holding.

IV. FOURTH AMENDMENT CLAIMS

We now address Plaintiffs’ Fourth Amendment claims.

Plaintiffs contend that the Deputy Sheriffs violated their

Fourth and Fourteenth Amendment rights by unreasonably

detaining Kulas and Padberg for seventy-five minutes. Plain-

tiffs also claim that the Deputy Sheriffs searched the security

vehicle without securing Kulas’s or Padberg’s consent. We

review de novo the lawfulness of a search or seizure, United

States v. Stafford, 416 F.3d 1068, 1073 (9th Cir. 2005), and

address each claim in turn.

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8009

A. The Seventy-Five Minute Detention

Plaintiffs contend that their seventy-five minute detention

at the scene was unreasonably long and therefore violated

their Fourth Amendment rights. We agree.

[16] A dispatcher’s call to the Deputy Sheriff indicated that

a large white truck was disturbing Dodson Middle School and

that the truck was accompanied by a vehicle similar to a

police cruiser. Based on this information, the Deputy Sheriffs

had reasonable suspicion to believe Kulas and Padberg may

have been violating several California Vehicle Code provi-

sions.13 See Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177,

185 (2004) (requiring that investigative stops be predicated on

reasonable suspicion to believe further investigation may pro-

duce evidence that the person is involved in criminal activity).

Because there was reasonable suspicion, the initial investiga-

tive stop was proper.

[17] Once the sheriffs validly initiated an investigative

stop, no rigid time constraints governed its duration, so long

as the sheriffs acted diligently and pursued a means of investi-

gation likely to confirm or dispel their suspicions quickly.

United States v. Sharpe, 470 U.S. 675, 686 (1985). Here,

although a brief detention to investigate possible Vehicle

Code violations was warranted, that investigation should have

taken no more than a few minutes — enough time to examine

the security vehicle and to determine if there were any out-

standing warrants involving the vehicle or its occupants.14

13

E.g., Cal. Veh. Code § 25268 (prohibiting display of “a flashing

amber warning light on a vehicle”), § 25269 (prohibiting display of “a

flashing or steady burning red warning light on a vehicle”), § 25279(b)

(private security vehicles can use flashing amber lights only if vehicle is

clearly marked as private security), § 27605 (prohibiting ownership and

operation of a vehicle painted to resemble a police car).

14

Defendants suggest that the detention was also reasonable because of

potential violations of two California Education Code provisions: § 32210

8010 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

Defendants argue that the seventy-five minute detention

was justified by their reasonable suspicion that Plaintiffs vio-

lated California Penal Code § 626.8. But a person is only

guilty of a crime pursuant to § 626.8 if they (1) remain at a

school after being asked to leave; (2) reenter within seven

days of being asked to leave; or (3) engage in a “continued

pattern of unauthorized entry.” Plaintiffs did none of these

things. They were not asked to leave until the end of the

seventy-five minute detention, at which point they promptly

left. So, with respect to § 626.8, the officers at no time had

any reason to suspect that the Plaintiffs had committed or

were about to commit this crime.15

There is a second reason why the length of the detention

was not justified by reasonable suspicion. Much of the deten-

tion time was spent waiting for the Deputy Sheriffs’ supervi-

sor to come to the scene to assist with this novel situation. But

once it became clear that no Vehicle Code violations had

taken place, the Deputy Sheriffs were no longer authorized to

detain Plaintiffs based on a reasonable suspicion that any par-

(“Any person who willfully disturbs any public school or any public

school meeting is guilty of a misdemeanor. . . .”) and § 44811 (“[A]ny . . .

person whose conduct in a place where a school employee is required to

be in the course of his or her duties materially disrupts classwork or extra-

curricular activities or involves substantial disorder is guilty of a misde-

meanor.”). These provisions also might justify a brief detention. But, as

with the suspected Vehicle Code violations, there is no explanation of why

it would take seventy five minutes to investigate them. Presumably, just

speaking to Plaintiffs and school officials would be sufficient.

15

That Plaintiffs did not commit a crime under § 626.8 does not impact

the potential application of the statute to their First Amendment rights.

The statute proceeds in two parts: First, faced with conduct that interferes

with or disrupts a school, an officer can order the disrupting person to

leave, on pain of prosecution if he does not. If applicable to protected

speech activity, this order would itself impact First Amendment rights.

Second, only if the person refuses to leave when ordered to do so can he

be charged with a crime. Because Plaintiffs left immediately after being

ordered to do so, they never committed a crime under § 626.8.

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8011

ticular crime had been committed. Instead, the Deputy Sher-

iffs continued to detain plaintiffs because they were waiting

for their supervisors to help them figure out whether any

crime had been committed.

This basis for continued detention does not comport with

Fourth Amendment standards. The investigative purposes per-

mitted by detention are ones of fact, not law. See Michigan v.

Summers, 452 U.S. 692, 700 n.12 (1981) (listing some inves-

tigative techniques that may be used during a Terry stop: “in-

terrogation[;] . . . communicat[ion] with others, either police

or private citizens, in an effort to verify the explanation ten-

dered or to confirm the identification or determine whether a

person of that identity is otherwise wanted[;] . . . [and deter-

mination of whether] in fact an offense has occurred in the

area”). Thus, an officer’s uncertainty about the law cannot

excuse the detention. To permit otherwise “would remove the

incentive for police to make certain that they properly under-

stand the law that they are entrusted to enforce and obey.” See

United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir.

2000); see also United States v. Tibbetts, 396 F.3d 1132, 1138

(10th Cir. 2005) (“[F]ailure to understand the law by the very

person charged with enforcing it is not objectively reason-

able.”) (emphasis in original); cf. United States v. Booker, 496

F.3d 717, 722 (D.C. Cir. 2007) (“Unlike stops premised on

mistakes of fact, ‘[s]tops premised on a mistake of law, even

a reasonable, good-faith mistake, are generally held to be

unconstitutional.’ ”) (alteration in original) (quoting United

States v. Coplin, 463 F.3d 96, 101 (1st Cir. 2006)).

[18] In sum, neither California Penal Code § 626.8 nor the

search for other code provisions that might have been violated

justified the Deputy Sheriffs in detaining the Plaintiffs for

seventy-five minutes while the sheriffs tried to find some

basis for charging them. Consequently, we hold that the depu-

ties’ detention of Kulas and Padberg violated their Fourth and

Fourteenth Amendment rights. Accordingly, we reverse both

the district court’s grant of summary judgment in favor of

8012 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

Defendants and the district court’s denial of summary judg-

ment for Plaintiffs with respect to this issue.

B. Search of Security Vehicle

Plaintiffs also maintain that the Deputy Sheriffs violated

their Fourth Amendment rights by improperly searching

Plaintiffs’ security vehicle. Defendants contend that the depu-

ties had the consent of Kulas and Padberg and, in any event,

the Deputy Sheriffs acted pursuant to California Vehicle Code

§ 2806, which permits inspection of vehicles suspected of vio-

lating the Vehicle Code. We conclude that Plaintiffs have

raised a genuine issue of material fact as to whether the depu-

ties violated their Fourth Amendment rights.

At the outset, we note a significant factual dispute. Padberg

claimed that deputies searched the security vehicle twice, but

only secured consent for the second search. Deputies Repcik

and Darling remember only one search, and claim they had

permission. The recording from the security vehicle’s camera

does not clearly identify how many times the deputies entered

the vehicle, or whether they had consent. This conflicting tes-

timony raises a credibility question that only the factfinder

can resolve. See Freeman v. Arpaio, 125 F.3d 732, 735 (9th

Cir. 1997). For our review of the district court’s grant of sum-

mary judgment for Defendants, we assume that the Plaintiffs’

version of events is true. See Moreno v. Baca, 431 F.3d 633,

638 (9th Cir. 2005).

Thus, for the purposes of this appeal, we accept Plaintiffs’

assertion that two searches took place, and that the first was

not supported by consent. We must therefore evaluate

whether the first search violated Plaintiffs’ Fourth Amend-

ment rights. Defendants cite California Vehicle Code § 2806

as justification for this search. We conclude that, absent con-

sent, the search was improper.

Section 2806 provides as follows:

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8013

Any . . . deputy sheriff . . . having reasonable cause

to believe that any vehicle or combination of vehi-

cles is not equipped as required by this code or is in

any unsafe condition as to endanger any person, may

require the driver to stop and submit the vehicle or

combination of vehicles to an inspection and those

tests as may be appropriate to determine the safety

to persons and compliance with the code.

Cal. Veh. Code § 2806. The deputies entered Plaintiffs’ secur-

ity vehicle to determine whether the flashing lights could be

activated. They now contend that their entry was necessary to

ensure that the vehicle complied with the Vehicle Code.

[19] We addressed the validity of § 2806 searches in United

States v. Portillo, 633 F.2d 1313 (9th Cir. 1980). In Portillo,

a police officer opened a vehicle’s trunk to identify the cause

of a broken rear brake light. Id. at 1315. We upheld the

search, reasoning that § 2806 allowed police to enter a vehicle

to discover the cause of a potentially dangerous condition: in

that case, the possibility that the car’s electrical wiring had

degraded. See id. at 1318-19. We also cautioned, however,

that the defect justified entry because it “was not only a code

violation, but a threat to the safety of persons on the highway”

and that further inspection might either provide an easy rem-

edy or identify more serious safety concerns. Id. at 1319.

[20] Portillo does not legitimize the search of Plaintiffs’

security vehicle. A search’s reasonableness depends on “the

degree to which it intrudes upon an individual’s privacy, and

. . . the degree to which it is needed for the promotion of legit-

imate governmental interests.” United States v. Knights, 534

U.S. 112, 118-19 (2001) (quoting Wyoming v. Houghton, 526

U.S. 295, 300 (1999)). Unlike Portillo, the existence of the

flashing lights here does not suggest any hidden cause that

might be a more serious safety hazard, and further inspection

of the lights would not likely expose more serious code viola-

tions. None of the Vehicle Code sections cited by the Deputy

8014 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

Sheriffs turn on whether the lights are capable of activation.

Thus, entry to activate the lights would not further the govern-

ment’s interests.16 We therefore hold that, absent consent, this

search unreasonably intruded on Plaintiffs’ Fourth Amend-

ment rights.17

C. Qualified Immunity

We now consider whether the Deputy Sheriffs are entitled

to qualified immunity on the Fourth Amendment issues. We

conclude that they are not.

1. Liability for the Unreasonable Detention

[21] The deputies cannot receive qualified immunity for

their unreasonably lengthy detention of Kulas and Padberg.

The deputies’ constitutional duty to act diligently and pursue

a means of investigation likely to confirm or dispel their sus-

picions quickly was clearly established on the date of the

detention in this case. See Sharpe, 470 U.S. at 686. Moreover,

it should have been readily apparent to a reasonable officer

that § 626.8 provided no basis for a detention, as no violation

of the statute occurred unless the Plaintiffs stayed on the

premises after being asked to leave. It was also apparent that

calling school liaison Deputy Sheriff Despot or Assistant

Principal Roberts was not likely to quickly confirm or dispel

16

The Sheriff’s Department also argues that the light switch was in plain

view. That the switch was visible does not justify entry to flip the switch

without some independent justification for entering the vehicle.

17

To the extent consent existed for each search, we reject Plaintiffs’

contention that the consent was not voluntary. “Whether consent to search

was voluntarily given is ‘to be determined from the totality of all the cir-

cumstances.’ ” United States v. Patayan Soriano, 361 F.3d 494, 501 (9th

Cir. 2004) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227

(1973)). We find nothing in the record that suggests coercion. The only

factor militating against voluntariness is the deputies’ failure to advise

Kulas and Padberg of their right to refuse consent. This alone does not

show that their consent was involuntary. See Schneckloth, 412 U.S. at 227.

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8015

any suspicion of wrongdoing. Moreover, neither Despot’s nor

Roberts’s presence was necessary to enforce § 626.8. As the

unlawfulness of their actions was apparent, the deputies are

not entitled to qualified immunity. See Hope, 536 U.S. at 739.

2. Liability for Searches of the Security Vehicle

[22] Assuming Plaintiffs’ allegations to be true, we con-

clude that the deputies do not have qualified immunity for the

first search of the security vehicle. The deputies acted under

authority given by California Vehicle Code § 2806, under

which we have previously upheld warrantless searches of

vehicles. See Portillo, 633 F.2d at 1318-19. Portillo, however,

clearly warned that police may only search a vehicle under

§ 2806 when there is reasonable cause to believe inspection

may uncover evidence of either potentially dangerous condi-

tions or more serious code violations. See id. at 1319. Enter-

ing the vehicle to turn on the lights was not likely to provide

information about either. Thus, the Sheriff’s Deputies are not

entitled to qualified immunity.

D. Summary of Fourth Amendment Claims

[23] Entry of summary judgment for the Sheriff’s Depart-

ment defendants was improper. The deputies violated Plain-

tiffs’ rights by unreasonably detaining them at the scene.

Moreover, Plaintiffs have raised a genuine issue of material

fact with regard to whether the deputies unlawfully entered

their security vehicle. Finally, we conclude that the individual

deputies are not entitled to qualified immunity on summary

judgment. Accordingly, we reverse the district court’s grant of

summary judgment for Defendants on both Fourth Amend-

ment claims. We also reverse the district court’s denial of

summary judgment for Plaintiffs on the unreasonable deten-

tion claim.

8016 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF

V. DISMISSAL OF SHERIFF BACA

We affirm the district court’s dismissal of Sheriff Baca. An

official capacity suit against a municipal officer is equivalent

to a suit against the entity. Kentucky v. Graham, 473 U.S.

159, 165-66 (1985). When both a municipal officer and a

local government entity are named, and the officer is named

only in an official capacity, the court may dismiss the officer

as a redundant defendant. See Busby v. City of Orlando, 931

F.2d 764, 776 (11th Cir. 1991). Thus, Sheriff Baca is a redun-

dant defendant.18

VI. CONCLUSION

For the foregoing reasons, we hold that Plaintiffs’ First

Amendment rights were violated. The individual defendants,

however, are entitled to qualified immunity from a damages

action on this issue. Accordingly, we reverse the district

court’s grant of summary judgment for defendants and the

denial of summary judgment for Plaintiffs on the First

Amendment issue. We affirm the district court’s dismissal of

the damages action against the individual defendants on quali-

fied immunity grounds on the First Amendment issue but

remand for consideration of injunctive relief. We also affirm

the district court’s dismissal of Sheriff Baca.

We also hold that Plaintiffs have conclusively shown a vio-

lation of their Fourth Amendment rights because of the unrea-

sonable length of Kulas and Padberg’s detention. Moreover,

Plaintiffs have raised a genuine issue of fact as to whether the

Deputy Sheriffs unlawfully entered their security vehicle. We

therefore reverse the district court’s grant of summary judg-

ment for Defendants on both Fourth Amendment claims and

18

Plaintiffs argue that Baca is not a redundant defendant because the

Sheriff’s Department may have sovereign immunity. Plaintiffs, however,

misstate the law: Local government entities do not have sovereign immu-

nity. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.54 (1978).

CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8017

reverse the district court’s denial of summary judgment for

Plaintiffs on the unreasonable detention issue.

We remand for further proceedings consistent with this

opinion. In particular, we leave it to the district court to

address, in light of this opinion, Plaintiffs’ conspiracy claim

and Plaintiffs’ request for injunctive relief.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED. EACH SIDE TO BEAR ITS OWN COSTS.