Salvador Reza v. Russell Pearce

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SALVADOR REZA, No. 13-15154

Plaintiff-Appellant,

D.C. No.

v. 2:11-cv-01170-

FJM

RUSSELL PEARCE; JEFF TRAPP; JOHN

BURTON,

Defendants-Appellees. ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the District of Arizona

Frederick J. Martone, Senior District Judge

Argued and Submitted

March 12, 2015—San Francisco, CA

Filed August 18, 2015

Amended November 19, 2015

Before: J. Clifford Wallace, Milan D. Smith, Jr.,

and Paul J. Watford, Circuit Judges.

Order;

Opinion by Judge Milan D. Smith, Jr.;

Partial Concurrence and Partial Dissent by Judge Wallace

2 REZA V. PEARCE

SUMMARY*

Civil Rights

The panel denied a petition for panel rehearing, denied a

petition for rehearing en banc on behalf of the court, and

amended the opinion filed on August 18, 2015, appearing at

798 F.3d 881 (9th Cir. 2015).

The panel reversed the district court’s summary judgment

in favor of Arizona State Senator Pearce and affirmed the

district court’s Fed. R. Civ. P. 12(b)(6) dismissal of claims

against police officers in plaintiff’s action alleging that: (1)

Senator Pearce violated plaintiff’s constitutional rights when

he ordered plaintiff removed, and barred, from the Arizona

Senate building; and (2) police officers violated plaintiff’s

rights when they prevented plaintiff from entering the Senate

building and ultimately arrested him.

The panel first held that the Senate building was a limited

public forum. The panel determined that although Senator

Pearce’s restrictions on plaintiff, which attempted to preserve

the ability of the Senate to hold uninterrupted legislative

hearings, were viewpoint neutral, there were material issues

of disputed fact concerning whether plaintiff actually

disrupted the proceedings, and whether Senator Pearce had

legitimate concerns that, if plaintiff were allowed into the

Senate building in the future, he would interrupt legislative

debate. The panel concluded that, viewing the evidence in

the light most favorable to plaintiff, the non-moving party,

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

REZA V. PEARCE 3

Senator Pearce violated plaintiff’s clearly established First

Amendment rights and that the district court erred by granting

him qualified immunity on summary judgment. The panel

remanded for further proceedings.

The panel held that the district court did not err in

granting the police officers’ motion to dismiss the claims

against them on qualified immunity grounds because the

officers arrested plaintiff for criminal trespass pursuant to a

facially-valid order issued by Senator Pearce.

The panel further held that the district court did not abuse

its discretion in granting Senator Pearce’s Motion for

Protective Order, which prevented plaintiff from questioning

Senator Pearce about his acquaintance with J.T. Ready, a

purported white supremacist.

Concurring in part and dissenting in part, Judge Wallace

would hold that Senator Pearce is entitled to qualified

immunity and he would affirm the summary judgment in his

favor.

COUNSEL

Stephen Montoya (argued), Montoya, Jimenez, and Pastor,

P.A., Phoenix, Arizona, for Plaintiff-Appellant.

Loren R. Ungar (argued), Rose Law Group, PC, Scottsdale,

Arizona, for Defendant-Appellee Russell Pearce.

Sandra Slaton (argued), Slaton & Sannes, P.C., Scottsdale,

Arizona, for Defendant-Appellee John Burton.

4 REZA V. PEARCE

Luane Rosen (argued), Charles D. Onofry, Schneider &

Onofry, P.C., Phoenix, Arizona, for Defendant-Appellee Jeff

Trapp.

ORDER

The panel has voted to deny the petition for panel

rehearing. Judges Smith and Watford voted to deny the

petition for rehearing en banc, and Judge Wallace so

recommends. The full court has been advised of the petition

for rehearing en banc, and no judge of the court has requested

a vote on en banc rehearing. See Fed. R. App. P. 35(f). The

petition for panel rehearing and the petition for rehearing en

banc are DENIED. The court’s opinion and the dissent filed

August 18, 2015, and appearing at 798 F.3d 881 (9th Cir.

2015), are hereby amended. An amended opinion and dissent

are filed herewith. No further petitions for rehearing or

rehearing en banc may be filed.

OPINION

M. SMITH, Circuit Judge:

In this § 1983 action, Salvador Reza alleges that Arizona

State Senator Russell Pearce violated his constitutional rights

when he ordered Reza removed, and barred, from the Arizona

Senate building (the Building) at the state capital. Reza

contends that Senator Pearce targeted him because of his

public criticism of the senator, and because of Reza’s

Mexican heritage. Senator Pearce responds that he was

justified in barring Reza from the Building because Reza

disrupted Senate proceedings, and because he believed Reza

REZA V. PEARCE 5

would interrupt Senate proceedings in the future. The district

court granted summary judgment to Senator Pearce on

qualified immunity grounds because it concluded that Pearce

had “an objectively reasonable basis . . . to conclude that

action needed to be taken to protect and preserve safety and

decorum,” and that if Reza “was mistakenly targeted as a

disruptive member of the crowd” that such a mistake could

not violate the First Amendment. The district court assumed

that if such a mistake was made, then it did not violate clearly

established law to bar Reza from the building in the future

based on a fear of future disturbances.

Reza also alleges that officers Jeff Trapp and John Burton

violated his rights under the First and Fourth Amendments by

preventing Reza from entering the Building, and ultimately

arresting him. Reza challenges the district court’s order

granting Rule 12(b)(6) motions to dismiss his claims against

Trapp and Burton on qualified immunity grounds.

Finally, Reza challenges a protective order granted by the

district court that prevented him from obtaining evidence

concerning Senator Pearce’s relationship with J.T. Ready, a

white supremacist leader.

We reverse the district court’s decision to grant summary

judgment to Senator Pearce, and remand for further

proceedings consistent with this opinion. Based on our

review of the record, we find several disputed issues of

material fact that affect our determination of whether Senator

Pearce violated Reza’s First Amendment rights. Thus, when

we resolve factual disputes in favor of Reza’s version of

events, as required on a motion for summary judgment, we

conclude that Senator Pearce’s alleged conduct violated our

circuit’s clearly established First Amendment law. We affirm

6 REZA V. PEARCE

the district court’s rulings regarding officers Trapp and

Burton, and its protective order.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

A. The Alleged Disruption of the Arizona Senate

Debate

Salvador Reza is a member of Tonatierra, a community

development organization that seeks to protect the rights of

migrant workers and their families. On February 22, 2011,

Reza attended a legislative hearing at the Building concerning

the Omnibus Immigration Bill, a state immigration law.

The hearing on the Omnibus Immigration Bill attracted

significant public attention. Because of the number of people

already in the Building when Reza and other supporters of

Tonatierra arrived, he and those supporters were unable to sit

in the room where the Senate hearing was held. Instead, Reza

sat in an overflow room, where people could view a broadcast

of the Senate hearing proceedings. Both opponents and

supporters of the proposed legislation applauded and booed

in the overflow room during the course of the hearing.

Senator Pearce claims that, near the end of the day’s

proceedings, noise from the overflow room began to interfere

with legislative debate. At this time, Officer John Burton

approached Reza and asked him to try to silence the audience.

Reza refused to do so and, when the officer said he might

have to detain some protestors if they kept loudly clapping,

Reza allegedly said “do what you have to do.” In his

deposition, Officer Burton states that Reza was

REZA V. PEARCE 7

confrontational and challenged the officer by saying, “Go

ahead, throw me out.”

Around 10:00 pm, Sergeant-at-Arms Joe Kubacki entered

the overflow room and told the crowd to stop applauding,

because the noise was violating the Senate’s rules of

decorum. In his deposition, he states that some members of

the audience, including Reza, started applauding even louder.

Kubacki reported this incident to Senator Pearce. Senator

Pearce was the president of the Senate at that time, and had

authority to maintain decorum for the Senate. In his affidavit,

Senator Pearce claims that, in the aftermath of a recent

shooting at an event held by Congresswoman Gabrielle

Giffords, public officials were “on edge” and “nervous,” and

were particularly concerned about potential violence at

protests. Earlier that day, police had arrested four protestors

at a press conference held by State Senator Krysten Sinema.

When Senator Pearce asked Kubacki how to handle the

protestors in the overflow room, Kubacki apparently advised

that, since the legislative hearing appeared to be concluding,

it would be better to try to limit disturbances in the short term

and not arrest any protestors or attempt to remove them from

the Building.

Senator Steve Gallardo, who attended the Omnibus

Immigration Bill hearing, submitted an affidavit stating that:

“I never saw Mr. Reza engage in any disruptive behavior at

the Arizona State Senate on February 22, 2011 or at any other

time . . . Nor did I ever observe anyone either disrupt or

interrupt the public hearing before the Appropriations

Committee on February 22, 2011.” Others attending the

hearing have supported Senator Gallardo’s affidavit. For

instance, Jason Odhner, an individual who was seated in the

8 REZA V. PEARCE

overflow room during the hearing, testified that, “[d]uring the

entire time that I was at the Senate building on that occasion,

I never saw Mr. Reza engage in any type of disruptive or

disrespectful behavior.”

B. Senator Pearce’s Ban of Salvador Reza

After the Omnibus Immigration Bill hearing concluded,

Senator Pearce approached Officer Jeff Trapp and asked him

to identify those who had been protesting loudly in the

overflow room. Senator Pearce directed Officer Trapp to

deny entrance into the Building to those he identified, due to

their disorderly and disruptive behavior. The officers

identified Reza as one of the individuals who had disrupted

the Senate hearing, and therefore planned to bar Reza from

entering the Building.

C. Reza’s Arrest

On February 24, 2011, Reza tried to enter the Building for

the purpose of meeting with Senator Gallardo to discuss

obtaining a permit for future protests. At that time, Officers

Trapp and Burton told Reza that he was not permitted inside

the Building because of his disorderly and disruptive behavior

during the Omnibus Immigration Bill hearing. When Reza

nonetheless tried to enter the Building, the two officers

arrested Reza and took him to a holding room in the Building.

Reza was eventually arrested for trespassing and transferred

to the Maricopa County Jail, where he remained for

approximately five hours.

REZA V. PEARCE 9

D. Press Release and New Rules Governing Senate

On February 25, 2011, Senator Pearce issued a press

release concerning the February 22 protest and the purported

disruption he claimed had occurred. Senator Pearce’s press

release discussed the tense environment in Arizona after a

fatal shooting at an event hosted by Representative Giffords,

and the protest at the speech by Senator Sinema. On March

14, 2011, Senator Pearce issued new rules concerning public

interruptions of proceedings in the Arizona Senate. Under the

new rules, first time violators would be excluded from the

Building for two weeks; subsequent violators would be

excluded for 60 days.

II. Prior Proceedings

On June 13, 2011, Reza filed this § 1983 action, alleging

that Senator Pearce violated his First Amendment rights by

barring him from the Building generally, and specifically by

preventing him from entering the Building to attend a

meeting with Senator Gallardo on February 24, 2011. Reza

alleges that Senator Pearce targeted him because of his

Mexican ancestry and his public criticism of Senator Pearce.

Reza also filed separate § 1983 actions against Officers Trapp

and Burton for arresting him, and preventing him from

entering the Building on February 24, 2011.

The district court granted summary judgment to Senator

Pearce, concluding that the senator was protected by qualified

immunity. The district court also granted motions to dismiss

filed by Officers Trapp and John Burton. In addition, the

district court granted a protective order preventing Reza from

obtaining evidence concerning Senator Pearce’s relationship

with J.T. Ready, a white supremacist leader.

10 REZA V. PEARCE

This timely appeal followed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to 28

U.S.C. § 1291. We review de novo the district court’s

decision to grant summary judgment to Senator Pearce on

qualified immunity grounds, considering disputed material

facts in the light most favorable to Reza, the non-moving

party. See Garcia v. Cnty. Of Merced, 639 F.3d 1206, 1208

(9th Cir. 2011). We also review de novo the district court’s

decision to dismiss the claims against Officers Trapp and

Burton for failure to state a claim on which relief can be

granted. See Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir.

2010).

DISCUSSION

I. Senator Pearce’s Qualified Immunity

Reza contends that Senator Pearce violated his First

Amendment rights when he barred him from entering the

Building. The district court granted summary judgment to

Senator Pearce, concluding that because Reza did not allege

a First Amendment violation, Senator Pearce was entitled to

qualified immunity.

We reverse the district court’s decision and remand for

further proceedings consistent with this opinion. To overcome

Senator Pearce’s qualified immunity defense, Reza must

establish both that Senator Pearce violated his First

Amendment rights, and that this violation was of a “clearly

established statutory or constitutional right[] of which a

reasonable person would have known.” Pearson v. Callahan,

REZA V. PEARCE 11

555 U.S. 223, 231 (2009). We find several material issues of

disputed fact that, if resolved in favor of Reza’s version of

events, would show that Senator Pearce’s conduct violated

clearly established First Amendment law. Therefore, the

district court erred in granting summary judgment to Senator

Pearce.

A. Was There A First Amendment Violation?

1. Forum

We begin by determining what kind of forum the

Building is because the type and scope of restrictions the

government may place on speech depends on where the

speech occurs. See White v. City of Norwalk, 900 F.2d 1421,

1425 (9th Cir. 1990). Federal courts have generally

recognized three categories of public fora: (1) traditional

public fora; (2) designated public fora; and (3) limited public

fora. Traditional public fora are areas historically used by the

public for assembly, such as sidewalks and parks. See Perry

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44

(1983). Designated public fora are those where “the

government intentionally opens a nontraditional forum for

public discourse.” DiLoreto v. Downey Unified Sch. Dist. Bd.

Of Educ., 196 F.3d 958, 964 (9th Cir. 1999). Limited public

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

dedicated solely to the discussion of certain subjects.”

Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470

(2010).

Although Reza contends that the Building is a public

forum, it is more specifically a limited public forum. We have

held that city council meetings, where the public has the

opportunity to address officers of a local government or local

12 REZA V. PEARCE

governmental agency, are limited public fora. White, 900 F.2d

at 1425. Much like a city council meeting, which is a

“governmental process with a governmental purpose,” id., the

hearing on the Omnibus Immigration Bill involved

proceedings concerning the possible enactment of a public

law by a governmental institution.

The fact that Reza was only a member of the audience,

and not an individual addressing the Senate hearing, has no

bearing on the nature of the forum. Put another way, unlike

the plaintiffs in White, who were addressing the limited

forum as part of the city council proceedings themselves,

Reza was not testifying before the Senate. The disputed

speech involved Reza’s reactions to proceedings being held

in the Building. At bottom, however, “[a] limited public

forum is a limited public forum.” Norse v. City of Santa Cruz,

629 F.3d 966, 976 (9th Cir. 2010). Restrictions on the speech

of spectators in a limited public forum are subject to the same

constitutional rules that apply to those addressing the

chamber. Id.

2. Legal Standard in a Limited Public Forum

We have recognized that, in order to safeguard the

purpose of a limited public forum, the government may

restrict speech in that forum. See White, 900 F.2d at 1426. “In

addition to time, place, and manner regulations, the state may

reserve the forum for its intended purposes, communicative

or otherwise, as long as the regulation on speech is reasonable

and not an effort to suppress expression merely because

public officials oppose the speaker’s view.” Perry Educ.

Ass’n, 460 U.S. at 46. See also Kindt v. Santa Monica Rent

Control Bd., 67 F.3d 266, 271 (9th Cir. 1995) (“The fact

remains that limitations on speech at those meetings must be

REZA V. PEARCE 13

reasonable and viewpoint neutral, but that is all they need to

be.”).

Although we conclude below that Senator Pearce’s

restrictions on Reza, which attempted to preserve the ability

of the Senate to hold uninterrupted legislative hearings, were

viewpoint neutral, there are material issues of disputed fact

concerning whether Reza actually disrupted the proceedings,

and whether Senator Pearce had legitimate concerns that, if

Reza were allowed into the Building in the future, he would

interrupt legislative debate. These factual issues affect our

analysis concerning the reasonableness of the restrictions

placed on Reza.

3. Viewpoint Neutrality

Reza contends that Senator Pearce targeted him because

of his Mexican ethnicity, and because he had strongly

articulated his opposition to Pearce’s immigration legislation.

The record in this case does not support these contentions. So

far as revealed by the record, Senator Pearce simply ordered

state Senate officers to identify people who were being loud

in the overflow room. After the officers designated Reza as

one of these individuals, they obtained public domain

photographs of Reza, which allowed them to identify him in

the future, and bar him from the Building. Senator Pearce

subsequently issued a press release stating that individuals

who had been identified as disrupting Senate proceedings

would not be allowed inside the Building for a period of two

weeks, and in case of multiple disruptions, for a period of 60

days.

It may be that opponents of the Omnibus Immigration Bill

outnumbered supporters of that bill in the overflow room, and

14 REZA V. PEARCE

that the ban on individuals who had allegedly disrupted the

Senate hearing disproportionately impacted opponents of the

bill. Nevertheless, the record indicates that Senator Pearce’s

ban on Reza resulted from a neutral policy that was

implemented because some in the Senate hearing room

claimed that they had been disturbed by noise emanating

from the overflow room.

4. Disputed Facts As To Reasonableness

A restriction on expressive conduct in a limited forum

must be “reasonable in light of the purpose served by the

forum . . . .” DiLoreto v. Downey Unified Sch. Dist. Bd. of

Educ., 196 F.3d 958, 965 (9th Cir. 1999). See also Preminger

v. Peake, 552 F.3d 757, 765 (9th Cir. 2008). We permit

restrictions to maintain decorum and order in a proceeding.

See Kindt, 67 F.3d at 271.

There is a factual dispute as to whether Reza’s speech in

the overflow room actually disrupted the hearing regarding

the Omnibus Immigration Bill, and whether Senator Pearce

was legitimately concerned that, if Reza were allowed into

the Building in the future, he would interrupt legislative

debate. Some claim that Reza’s actions interfered with the

Senate hearing on the Omnibus Immigration Bill, which

prevented the Senate from finishing its business. For

example, Officer Burton testified that he asked Reza to keep

his voice down: “I spoke to Mr. Reza and instructed him that

it was getting loud, that I didn’t want the senators to become

upset and ask[] to have people thrown out. Mr. Reza told me,

‘Go ahead[;] throw me out.” Others, including Senator

Gallardo, claim that Reza did not do anything to disrupt the

Senate hearing. They contend that Reza only applauded

loudly.

REZA V. PEARCE 15

Senator Pearce was entitled to rely on information

provided to him by Senate officers that identified Reza as an

individual who was disrupting debate. However, at least one

officer clearly told the senator that there was no reason to

remove any audience members from the Senate building,

Reza included, during the Senate debate, although that may

have been a tactical decision, rather than an evaluation of

whether there had been any disruption. More importantly, it

is uncontroverted that Senate proceedings continued for the

duration of the Omnibus Immigration Bill protest, a fact that

the senator knew firsthand. This meant that, drawing all

reasonable inferences in favor of the non-moving party, any

purported protest never actually disrupted Senate

proceedings. It was only two days after the hearing concluded

that Senator Pearce ordered Reza barred from the Building.

In a limited public forum, our inquiry into the

reasonableness of restrictions takes into account whether the

restrictions imposed leave open alternative channels of

communication. In Kindt, we considered rules governing the

manner in which members of the public could address a rent

control board during a hearing in a limited public forum. 67

F.3d at 271. We determined that there was no First

Amendment violation because although the plaintiff was

required to comply with the rules of the rent control board,

the plaintiff still retained the ability to express himself. Id. In

the present case, however, Senator Pearce completely barred

Reza from entering the Building, which ultimately prevented

Reza from meeting with an elected senator. Senator Pearce’s

solution, imposing a complete bar on Reza’s entry into the

Building, clearly exceeds the bounds of reasonableness

clearly established by White, Kindt, and Norse as a response

to a single act of disruption, for the reasons explained in the

next section. Senator Pearce initially imposed an indefinite

16 REZA V. PEARCE

bar on Reza and later promulgated regulations that limited the

bar on disruptive individuals to two weeks for first time

offenders, although it is unclear if these regulations modified

the indefinite bar applicable to Reza.

As president of the Senate, Senator Pearce did have the

power to maintain order and decorum in the Senate

proceeding. Even if we acknowledge the senator’s authority

to bar disruptive individuals from Senate debates, we still

encounter factual disputes concerning whether Reza

interrupted Senate proceedings, and whether Senator Pearce

was justified in determining that Reza would interfere with

Senate proceedings in the future. We have held that “[w]hen

a respondent to a motion for summary judgment submits

proper affidavits by individuals with personal knowledge and

other cognizable and significantly probative evidence, such

that a reasonable juror drawing all inferences in favor of the

respondent could return a verdict in the respondent’s favor,

the judge must treat that fact as genuinely at issue.” United

States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999).

The affidavits and testimony submitted by Reza raise

triable issues of material fact. See Norse, 629 F.3d at 973

(reversing summary judgment to Mayor where citizen

“wanted to call attendees of the Council meetings as

witnesses to testify about whether Norse actually disrupted

them”). We thus conclude that it was error for the district

court to grant summary judgment to Senator Pearce on the

ground that Reza had not shown a First Amendment

violation.

REZA V. PEARCE 17

B. Was the First Amendment Violation Clearly

Established?

We further conclude that, based on the second prong of

the qualified immunity test, viewing the evidence in the light

most favorable to Reza, the non-moving party, Foster v.

Runnels, 554 F.3d 807, 811 (9th Cir. 2009), Senator Pearce’s

actions violated Reza’s clearly established First Amendment

rights. See Pearson, 555 U.S. at 231; Eng v. Cooley, 552 F.3d

1062, 1075 (9th Cir. 2009).

1. Meaning of “Clearly Established”

A right is clearly established if it was “sufficiently clear

[at the time of the conduct at issue] that every reasonable

official would have understood that what he is doing violates

that right.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015).

See also Anderson v. Creighton, 483 U.S. 635, 640 (1987).

“If the law does not ‘put the officer on notice that his conduct

would be clearly unlawful, summary judgment based on

qualified immunity is appropriate.’” Foster, 554 F.3d at 815

(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).

We note, however, that the Supreme Court does “not

require a case directly on point.” Ashcroft v. al-Kidd, 131 S.

Ct. 2074, 2083 (2011). Instead, existing precedent must have

placed the constitutional question beyond debate. Id.

“[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Hope

v. Pelzer, 536 U.S. 730, 741 (2002). Ultimately, the “clearly

established” prong of the qualified immunity test shows

deference towards the actions of government officials, but

does not shield individuals who are “plainly incompetent or

18 REZA V. PEARCE

those who knowingly violate the law.” Taylor, 135 S. Ct. at

2044.

2. Ninth Circuit Law at the Time of Senator

Pearce’s Conduct

On February 22, 2011, the date of the Omnibus

Immigration Bill hearing, clearly established law held that an

individual could express disagreement in a limited public

forum, but that the government could restrict the individual’s

speech to safeguard the purpose of the forum, as long as the

restrictions were reasonable and viewpoint neutral. See

Norse, 629 F.3d at 975. Our circuit’s case law also

unambiguously held that a government official could remove

an individual from a limited public forum only if the

individual had actually disrupted proceedings. Id.

In evaluating the question of qualified immunity, we must

be careful not to define “clearly established” at a “high level

of generality.” City & Cnty. of San Francisco v. Sheehan, 135

S. Ct. 1765, 1775–76 (2015). No such high level of generality

is at issue here. Norse, an en banc decision from the year

before the incident at issue, was emphatic that actual

disruption was required to eject a person from a limited

public forum, and that the defendant “cannot define

disruption so as to include non-disruption.” 629 F.3d at 976.

“Actual disruption means actual disruption. It does not mean

constructive disruption, technical disruption, virtual

disruption, nunc pro tunc disruption, or imaginary

disruption.” Id. Norse reaffirmed the fundamental principle

that the government can remove an individual from a limited

public forum only if the individual actually disrupts the

proceedings. No cases, in the Ninth Circuit or otherwise, even

remotely suggest that Norse’s principle can be inverted to

REZA V. PEARCE 19

indefinitely ban an individual from a government building

based on a single disruption of a hearing.

In White, for example, we considered a facial challenge

to a city ordinance that authorized a city council to remove

individuals from hearings if they made “personal,

impertinent, slanderous or profane remarks.” 900 F.2d at

1424. We upheld the city ordinance, but only because it

authorized removal when an attendee “disrupts, disturbs or

otherwise impedes the orderly conduct of the Council

meeting.” Id. at 1426.

In Kindt, we analyzed a First Amendment challenge

regarding an individual’s multiple removals from a rent

control board’s meetings. 67 F.3d at 268. We concluded that

the board’s ejection of the individual had been valid under the

First Amendment. The individual had actually disrupted rent

control meetings by speaking out of order and yelling at the

board during proceedings. Id. at 268–69.

Thus, nothing in our caselaw suggests that Pearce could

have reasonably believed that he could violate Norse and

instead bar Reza from the building at a time when it is

undisputed that he was not being disruptive: when he went to

meet with Senator Gallardo a few days after the hearing on

the Omnibus Immigration Bill.

3. Factors Considered in the Present Case

In the case before us, the senator never ordered that Reza

be removed from the overflow room during the Senate

hearing on the Omnibus Immigration Bill. Senate proceedings

continued uninterrupted during the alleged protest. Despite

Senator Pearce having knowledge of all these facts, two days

20 REZA V. PEARCE

after the Omnibus Immigration Bill hearing, he decided to

ban Reza from the Building altogether. The effect of the ban

was thus to exclude Reza not simply from all future hearings

related to the Omnibus Immigration Bill, but from all future

hearings on any subject, based on the purported fear that he

could be disruptive in the future.

In addition, because the Building housed the legislative

offices of all members of the Arizona Senate, the ban

precluded Reza from visiting his elected representatives to

urge legislative action on any subject. Indeed, the ban

ultimately resulted in Reza’s arrest when he attempted to visit

a state senator with whom he had arranged a meeting.

We also evaluate the asserted public safety concern.

Senator Pearce correctly urges that “the interest in keeping a

government building accessible and safe is both legitimate

and significant.” Sammartano v. First Judicial Dist. Court,

303 F.3d 959, 973 (9th Cir. 2002), abrogated on other

grounds by Winter v. Nat. Res. Def. Council., 129 S. Ct. 365

(2008).

However, mindful of the summary judgment context, we

are not persuaded by the senator’s public safety rationale for

his restrictions on Reza. At the time of the challenged

conduct, our First Amendment doctrine had clearly held that

safety concerns of the type Senator Pearce raises here must be

supported by the record. See id. Pursuant to this case law, we

review the record to determine if it “show[s] that the asserted

risks were real.” Id. at 967. We also determine whether the

First Amendment restrictions at issue serve the government’s

public safety interest, although we do not apply a least

restrictive means test. “The Government’s decision to restrict

access to a nonpublic forum need only be reasonable; it need

REZA V. PEARCE 21

not be the most reasonable or the only reasonable limitation.”

Cornelius v. NAACP Legal Def. And Educ. Fund Inc., 473

U.S. 788, 808 (1985).

Here, the senator did not submit sufficient evidence

showing that Reza posed a threat to the public safety. Instead,

the senator asks us to infer that it was reasonable to believe

that Reza was a threat based only on the tense environment

that existed in Arizona at the time of the protest. At summary

judgment, we are required to draw the opposite inference,

since Reza is the non-moving party. Further, Senator Pearce

took an extreme action, barring Reza from the Senate

building completely. It is unclear how Pearce could have

reasonably believed that Reza posed a risk that could justify

such a ban.

We thus conclude that, when genuine disputes of fact are

resolved in Reza’s favor, Senator Pearce violated Reza’s

clearly established First Amendment rights and that the

district court erred by granting summary judgment to Senator

Pearce.

II. Officers’ Qualified Immunity

Reza also contends that Officers Jeff Trapp and John

Burton violated his constitutional rights by preventing him

from entering the Building, and by subsequently arresting

him. The officers respond that they are entitled to qualified

immunity, because they were complying with a facially-valid

order from Senator Pearce to exclude Reza, and because they

had probable cause to arrest Reza.

We hold that the district court did not err in granting the

officers’ motion to dismiss on qualified immunity grounds,

22 REZA V. PEARCE

because they arrested Reza for criminal trespass pursuant to

a facially-valid order issued by Senator Pearce.

In Arizona, a person commits criminal trespass in the

third degree by “[k]nowingly entering or remaining

unlawfully on any real property after a reasonable request to

leave by the owner or any other person having lawful control

over such property, or reasonable notice prohibiting entry.”

A.R.S. 13-1502(A)(1). An officer is “entitled to qualified

immunity on a false arrest claim if a reasonable officer in his

position could have believed that probable cause existed.”

Norse, 629 F.3d at 978.

Senator Pearce issued the order to exclude Reza pursuant

to his authority as President of the State Senate. Rule 2(B) of

the Arizona Senate Rules states that the Senate President

“shall have control of the Senate Chamber . . . all other parts

of the Senate wing and all other areas and buildings used

exclusively by the Senate.” Rule 2(C) states that the President

“shall preserve and maintain order and decorum.”

Thus, Senator Pearce’s order was facially valid. Perhaps

the substantive legitimacy of Senator Pearce’s order could be

challenged, but not in a lawsuit against the officers. “[T]he

existence of a statute or ordinance authorizing particular

conduct is a factor which militates in favor of the conclusion

that a reasonable official would find that conduct

constitutional.” Grossman v. City of Portland, 33 F.3d 1200,

1209 (9th Cir. 1994). Furthermore, Reza concedes that he

continued his attempt to walk into the Building to meet with

Senator Gallardo, after being told by the officers that he could

not enter the Building. Under the circumstances, Reza’s

attempted entry was an act of trespass under Arizona law, and

REZA V. PEARCE 23

the officers had probable cause to arrest Reza based on

Senator Pearce’s facially-valid order.

III. Questions Concerning J.T. Ready

Reza also claims that the district court erred in granting

Senator Pearce’s Motion for Protective Order, which

prevented Reza from questioning Senator Pearce about his

acquaintance with J.T. Ready, a purported white supremacist.

Discovery normally must be “relevant to any party’s

claim or defense.” Fed. R. Civ. P. 26(b)(1). Even if discovery

is relevant, however, a court may issue a protective order “to

protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense.” Fed. R. Civ. P.

26(c). We review the district court’s decision to enter the

protective order for an abuse of discretion. See Preminger,

552 F.3d at 768 n.10.

It is unclear from the record whether information relating

to J.T. Ready would have led to the discovery of admissible

evidence. The only relevant issue related to Senator Pearce’s

alleged friendship with J.T. Ready is the senator’s purported

discrimination against Reza based on Reza’s Mexican

ancestry. However, Reza had already discovered public

information concerning the purported friendship between

Senator Pearce and J.T. Ready. This public information

diminishes the probative value of additional questions

concerning the alleged friendship. The district court

concluded that “[i]f defendant associated with a Neo-Nazi

murderer, details about this relationship may make it slightly

more likely that defendant himself was racist.” Nevertheless,

the court determined that “it is highly likely that the evidence

would be excluded under Federal Rule of Evidence 403.” In

24 REZA V. PEARCE

light of the discretion entrusted to district judges in applying

Federal Rule of Evidence 403, the district court did not abuse

its discretion in granting the protective order.

IV. Conclusion

We reverse the district court’s decision to grant summary

judgment to Senator Pearce and remand for further

proceedings consistent with this opinion. We affirm the

district court’s rulings regarding officers Trapp and Burton,

and its protective order.

Each party shall bear its own costs on appeal.

REVERSED AND REMANDED IN PART.

AFFIRMED IN PART.

WALLACE, Circuit Judge, concurring in part and dissenting

in part:

I dissent from Part I of the majority opinion, which

incorrectly holds that Senator Pearce “violated Reza’s clearly

established First Amendment rights.” Opinion p. 17. The

Supreme Court has repeatedly cautioned courts—and our

circuit in particular—“not [to] define clearly established law

at a high level of generality.” Ashcroft v. Al-Kidd, 131 S. Ct.

2074, 2084 (2011); see also City & Cnty. of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1778 (2015) (reversing our

circuit’s decision on the basis that the officers were entitled

to qualified immunity); Lopez v. Smith, 135 S. Ct. 1, 6 (2014)

(per curiam) (reversing our circuit’s decision and cautioning

us against “framing our precedents at such a high level of

REZA V. PEARCE 25

generality” (internal quotation marks omitted)). Rather than

correct the course, as directed by the Supreme Court, in this

case, the majority continues in the wrong direction and I

therefore dissent.

To recover under 42 U.S.C. § 1983 Reza must show (1)

that Senator Pearce violated one of Reza’s statutory or

constitutional rights, and (2) that the right “was clearly

established at the time of the challenged conduct.” Plumhoff,

134 S. Ct. 2012, 2023 (2012) (internal quotation marks

omitted). As the Supreme Court recently explained, the

“clearly established” standard is not easily overcome: “An

officer ‘cannot be said to have violated a clearly established

right unless the right’s contours were sufficiently definite that

any reasonable official in [his] shoes would have understood

that he was violating it,’ meaning that ‘existing precedent . . .

placed the statutory or constitutional question beyond

debate.’” Sheehan, 135 S. Ct. at 1774, quoting Ashcroft, 131

S. Ct. at 2083. Qualified immunity, “[w]hen properly applied,

. . . protects all but the plainly incompetent or those who

knowingly violate the law.” Ashcroft, 131 S. Ct. at 2085

(internal quotation marks omitted).

As the majority recognizes, the Senate Building is a

limited public forum. Opinion p. 11. Therefore, the

government could restrict speech in the building so long as

any “regulation on speech [was] reasonable and not an effort

to suppress expression merely because public officials oppose

the speaker’s view.” Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 46 (1983). The majority

correctly concludes that “Senator Pearce’s ban on Reza

resulted from a neutral policy.” Opinion p. 14. But it fails to

recognize the reasonableness of Senator Pearce’s actions

given the circumstances he faced. As the majority concedes,

26 REZA V. PEARCE

“Senator Pearce was entitled to rely on information provided

to him by Senate officers that identified Reza as an individual

who was disrupting debate.” Opinion p. 15. And although at

least one officer told Senator Pearce that there was no reason

to immediately remove anyone from the building (perhaps

because doing so would have emboldened the disruptors and

created an even greater disturbance), that does not change the

fact that multiple other officers told the senator that Reza

caused an actual disturbance. Moreover, Senator Pearce’s

order was a response to the tense atmosphere created by the

recent shooting in Tucson in which a federal judge was

murdered, and the fact that state senators expressed fear for

their safety as a result of a disruption that morning at one

senator’s press conference. The majority’s discussion of

reasonableness makes no mention of any of these surrounding

circumstances. This omission ignores our case law requiring

that we judge reasonableness “in light of the purpose of the

forum and all of the surrounding circumstances.” Premigner

v. Peake, 552 F.3d 757, 765 (9th Cir. 2008) (internal

quotation marks omitted) (emphasis added). In my view, in

light of the purpose of the forum, to conduct legislative

business, the surrounding circumstances, and the information

the senator received from his officers, the senator’s ban

(subsequently limited to two weeks) on alleged disruptors

was reasonable and therefore did not violate the First

Amendment.

But we need not even reach the question of whether

Senator Pearce actually violated First Amendment law in this

case by relying, as he could, on reports given to him by

officers assigned to keep order, because there is no doubt that

the senator did not violate “clearly established” law at the

time of the challenged conduct. At that time, not a single

Supreme Court decision clearly established the right Reza

REZA V. PEARCE 27

now asserts. Implicitly acknowledging this fact, the majority

focuses solely on Ninth Circuit law. Opinion p. 18–19. After

reviewing our law at the time, the majority concludes that

“[n]o cases, in the Ninth Circuit or otherwise, even remotely

suggest that Norse’s principle can be inverted to indefinitely

ban an individual from a government building based on a

single disruption of a hearing.” Opinion p. 18–19. But this

answers the wrong question and is ultimately a red herring.

The fact that no cases affirmatively permitted an official to

ban an individual from a government building based on a

single disruption (the majority’s conclusion) is irrelevant for

purposes of qualified immunity. Instead, the relevant question

is whether any case expressly prohibited an official from

banning an individual from a government building for a

single disruption. None of our cases at the time of the hearing

in question answered that question.

In White, we upheld a city ordinance that allowed removal

of individuals from a city council hearing if they made

“personal, impertinent, slanderous or profane remarks.” White

v. City of Norwalk, 900 F.2d 1421, 1424 (9th Cir. 1990). The

case says nothing regarding whether a government official

can bar a person from future hearings for causing an actual

disruption. We reinforced this rule in Kindt. There we upheld

a rent control board’s decision to remove an individual from

a meeting because of an actual disruption. Kindt v. Santa

Monica Rent Control Bd., 67 F.3d 266, 272–73 (9th Cir.

1995). Again, the case says nothing about banning a person

from future meetings where they caused an actual disruption.

Last, in Norse, we held that rules of decorum are not facially

overbroad if they limit the ability of government officers to

eject individuals for actually disturbing a meeting. Norse v.

City of Santa Cruz, 629 F.3d 966, 976 (9th Cir. 2010). Here

again, the case says nothing about whether an official can ban

28 REZA V. PEARCE

an individual from future meetings as a result of an actual

disruption.

Maybe Senator Pearce made a mistake in banning Reza

from the senate building. Perhaps the First Amendment

should prohibit such a ban. But neither view should make any

difference in this case because at the time of the challenged

conduct Senator Pearce did not violate any “clearly

established” right. On this basis, I would hold that Senator

Pearce is entitled to qualified immunity and would affirm the

district court’s summary judgment in his favor. The

majority’s holding to the contrary continues our unfortunate

ignoring of the Supreme Court’s repeated caution to avoid

defining clearly established law at a high level of generality.”

Ashcroft, 131 S. Ct. at 2084. I therefore dissent from the

holding reversing the district court’s summary judgment in

favor of Senator Pearce but concur in the remainder of the

majority opinion.