Appendix — Los Angeles County County Sheriff's Department v. Center for Bioethics (No. 08-424)

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APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 05-55294

D.C. No. CV-03-00386-GLT

Filed July 2, 2008

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

capacity as Sergeant; DAVE

DESPOT, individually; DAVE

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

ee eee eee ee”

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Deputy; ART ROBERTS,

individually; ART ROBERTS, in his

official capacity as an

administrative official, Dodson

Middle School,

Defendants-Appellees.

ee ee ee ee

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

Before: Harry Pregerson, William A. Fletcher, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Pregerson

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, California, for defendants-appellees Los

Angeles County Sheriffs Department.

Julie Mullane (argued), Gary Robert Gibeaut, Nancy

Mahan-Lamb, Lisa J. Brown, Gibeaut, Mahan &

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Briscoe, Los Angeles, 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 perimeter of a public middle school in

Rancho Palos Verdes, California. 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 seeking 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 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.

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

the reasons 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 judgment motion with

respect to Plaintiffs’ First Amendment claim and

Fourth Amendment Claim for unreasonable detention.

We affirm the district court’s order (1) dismissing

Sheriff 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 campaign, 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

freeways, but Bio-Ethical Reform employees and

volunteers sometimes take the trucks to specified

places to target particular audiences.

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Middle school and high school students are a

common target 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 “students 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 students “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

exposing 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

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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.

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 primary concerns. According to

him, 85 to 95 percent of Dodson’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

distracted. 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, Assistant 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.

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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

students he could see were on the campus by the start

of classes at 8:01 a.m.

School officials contacted the Sheriffs 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 “[ajnti-abortion truck with offensive

language and pictures is circling the school and

videotaping the school and surrounding area.” The

Sheriffs 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 Plaintiff Padberg, who was driving the

“security vehicle.” According 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 immediate area and talk to each other for

the duration of the stop.

Thirty minutes later, Deputy Sheriff Sergeant

Xavier Aguilar arrived. According to Deputy Sheriffs

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Darling and Repcik, they summoned Sergeant Aguilar,

their supervisor, to the scene because they had never

dealt with a comparable situation. Deputy Sheriff

Dave Despot, the liaison to Dodson Middle School, was

also summoned to the scene. He arrived between

fifteen and thirty minutes after Aguilar arrived.

Despot 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 Deputy 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, 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 Principal Roberts, and from Deputy Sheriffs

Repcik, Darling, Despot, and Sergeant Aguilar.

Plaintiffs sought an injunction to restrain the four

Deputy Sheriffs, Assistant Principal Roberts, Sheriff

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Baca (in his official capacity), and the Los Angeles

County Sheriffs 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 damages from the

Sheriff's Department.

The district court granted the _ individual

defendants” motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), holding that these defendants

were entitled to qualified immunity.” 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.

Il. STANDARD OF REVIEW

A district court’s decision on cross-motions for

summary judgment is reviewed de novo. ACLU of Nev.

v. City of Las Vegas, 466 F.3d 784, 790 (9th Cir. 2006).

Construing the evidence in the light most favorable to

the nonmoving party, we must determine whether

genuine issues of material fact exist. Jd. When

' The phrase “individual defendants,” refers to the defendants

sued in their individual capacity: Deputies Repcik, Darling and

Despot, Sergeant Aguilar, and Assistant Principal Roberts.

* 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.

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presented with cross-motions for summary judgment,

we review each motion for summary judgment

separately, giving the nonmoving party for each

motion the benefit of all reasonable inferences. Jd. at

790-91.

Ill. 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) (“[Al]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 public 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

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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

ample alternative channels for communication of the

information.” 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 qualify 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.” Jd.

[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. Defendants argue that

§ 626.8 is content-neutral because it is justified by a

purpose unrelated to the content of the message —

namely, the “compeiling interest in having an

undisrupted school session conducive to the students’

learning.” See Grayned v. City of Rockford, 408 U.S.

104, 119 (1972).°

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

alone does not justify the restriction applied to Plaintiffs. Grayned

identified disruptions of “normal school activities” as “boisterous

demonst: ators 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

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[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 Plaintiffs’ speech content-neutral. If

the statute, as read by the police officers on the scene,

would allow or disallow speech 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.”

See Bachellar v. Maryland, 397 U.S. 564, 567 (1970)

(“[I]t is firmly settled that under our Constitution the

public expression of ideas may not be prohibited

merely because the ideas are themselves 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.,

Gooding 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:

emphasizing this focus on classroom interruption, Grayned noted

with approval that the ordinance did not restrict “expressive

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 schoc!} setting here

thus provides no authority to engage in otherwise impermissible

restrictions.

* The term “heckler’s veto” first appeared in a footnote in Brown

v. Louisiana, 383 U.S. 131, 133 n.1 (1966). We use this term to

describe restrictions on speech that stem from listeners’ negative

reactions to a particular message.

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[I]In our system, undifferentiated fear or

apprehension of disturbance is not enough to

overcome the right to freedom of expression.

Any departure from absolute regimentation

may cause trouble. Any variation 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 throwing rocks at Plaintiffs’

truck. Roberts also stated that the faculty had more

difficulty than normal getting children into classes.

There is some evidence that students discussed

Plaintiffs’ 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 momentarily 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 “[lJisteners’ reaction to speech is not a content-

neutral basis for regulation” — in other words, the

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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 ordinance unconstitutionally

burdened speech that was “unpopular 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 regulation. 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 exercise.” Id.

at 551 (quoting Watson v. City of Memphis, 373 U.S.

526, 535 (1963)).

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] message to determine

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if the [communication] is exempted from the

ordinance.” ACLU, 466 F.3d at 795-96.°

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

encompass 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

prospectively, 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] 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 government then ratifies that

reaction by restricting the speech in response to

listeners’ objections, then the restriction is content-

based. Cf. Ovadail 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

° 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.

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

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

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be distracted from the task of safely navigating the

Beltline”) (emphases in original).

Nor is the reaction of listeners a secondary effect of

speech that can be regulated under City of Renton v.

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

a nearly identical statute, has held otherwise. In PeTA uv.

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 counterprotest 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.” Jd. 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.

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We are mindful that this case involves a special

circumstance, the presence of children. In particular,

the evidence suggests that children were distracted by

the Plaintiffs’ pictures, 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 conceivably support the proposition that

the heckler’s veto principle 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.* It would therefore

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 protests 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 messages.

® There is, however, at least one circumstance in which First

Amendment standards have been specially tailored to protect

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be an unprecedented departure from bedrock First

Amendment principles to allow the government to

restrict speech based on listener reaction 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), applying § 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 present circumstances.” Where a

construction of a statute would 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). |

children. See Ginsberg 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 safeguarded from abuses which might

prevent their growth into free and independent 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).

® The California legislature may elect to draft a statute

prohibiting disruptive 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.

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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 classroom teaching or studying.’® 408 U.S. at

119. Similarly, we have narrowed an injunction

prohibiting “shouting, screaming, 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 provision

of medical services within the [clinic].” Portland

Feminist 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

© The ordinance at issue in Grayned is strikingly similar to

§ 626.8. The ordinance there prohibited “willfully makling] 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 prohibit

“only actual or imminent interference with the ‘peace or good

order’ of the school.” Jd. at 111-12. It further held that the

ordinance was not “a vague, general ‘breach of the peace’

ordinance, but a statute written specifically for the school context,

where the prohibited disturbances are easily measured by their

impact on the normal activities of the school.” Jd. at 112. So

construed, the ordinance “does not permit punishment for the

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

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only if its manner caused disruption to the clinic’s

services, rather than if its content upset the patients or

staff. Therefore, we must address whether § 626.8

applies only where the manner, not the content, 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 serious constitutional issues — federal courts

have narrowly construed 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

permitted 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

ordinance 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:

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(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

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

representative, 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 Amendment problems. In doing so,

California courts have enunciated the principle that

“the court should construe the enactment so as to limit

22a

its effect and operation to matters that may be

constitutionally 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 prevent 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 term ‘threat’ has

been limited to mean a threat of unlawful violence

used in an attempt to deter the officer.” Jd. 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 uv.

Eller Outdoor Adver., 192 Cal. App. 3d 643, 663 (Ct.

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

possible, 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 ordinance 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

23a

utilized to impinge upon the lawful exercise of

constitutionally protected sights of freedom of speech

or assembly.” The California legislature 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

exnansively, barring applications 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."

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

language 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 concerned with the

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

" The California legislature sometimes drafts First Amendment

savings clauses more narrowly, so as merely to limit the statute

to what is constitutionally permissible. For instance, California

Penal Code § 420.1 provides that it “smal! net apply to... any

person who is engaging in activities proteewed by the California

Constitution or the United States Constitution.” The same “shall

not apply to” language is used in Penal Code $§ 602/9), 602.1, and

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

“(clonstitutionally 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.

24a

content of his speech. Similarly, the words “interfere”

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 listener’s reaction to the content of his

speech. We thus conclude 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 listener and

cause the listener to behave disruptively are not

covered by the statute.

{11} Under our narrow construction, § 626.8 does

not apply to Piaintiffs’ 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 discussing 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. Construing § 626.8 as we do, the

statute provided no basis to prohibit Plaintiffs from

continuing to drive their vehicles around the school

before classes began.

[12] Section 626.8 was the only authority cited by

Defendants in asking Plaintiffs to leave, and thus

25a

provided the only possible source of a significant

governmental interest necessary 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 Plaintiffs’ speech. We therefore hold that

the Deputy Sheriffs violated Plaintiffs’ First

Amendment right of free speech.

B. Qualified Immunity

We next consider whether the district court

correctly determined that the individual defendants

were entitled to qualified immunity for Plaintiffs’ First

Amendment claims.” We review a grant of qualified

immunity de novo. Bias v. Moynihan, 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.

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

decided this issue on the merits.

26a

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 uv.

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

is clear, however, we must determine whether the

officers made a reasonable mistake about the law’s

requirements. See id. at 205.

[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 interest.

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 officers 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 conducting

unconstitutional strip-search because “the policy and

the state statute had not fallen into desuetude, nor

were they patently violative of fundamental

27a

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

practice 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

Plaintiffs to cease driving their truck around the area.

See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (relevant

inquiry is whether “the state of the law [at the

relevant time] gave [defendants] fair warning that

their [conduct] was unconstitutional”); Porter 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 countervailing interests

asserted by the State”). We therefore affirm the

district court’s conclusion that the individual

defendants are entitled to qualified immunity on the

First Amendment claim.

C. Summary of First Amendment Claim

California Penal Code § 626.8, read as we believe a

California court would construe it, does not apply to

Plaintiffs’ expressive activities in driving their trucks

28a

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. Plaintiffs 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.

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.

29a

Based on this information, the Deputy Sheriffs had

reasonable suspicion to believe Kulas and Padberg

may have been violating several California Vehicle

Code provisions.”® 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 produce

evidence that the person is involved in criminal

activity). Because there was reasonable suspicion, the

initial investigative stop was proper.

{17] Once the sheriffs validly initiated an

investigative stop, no rigid time constraints governed

its” .->tion, so long as the sheriffs acted diligently and

pursued a means of investigation likely to confirm or

dispel their suspicions quickly. United States uv.

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 outstanding warrants involving the

vehicle or its occupants."

'S 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).

Defendants suggest that the detention was also reasonable

because of potential violations of two California Education Code

provisions: § 32210 (“Any person who willfully disturbs any public

school or any public school meeting is guilty of a

30a

Defendants argue that the seventy-five minute

detention was justified by their reasonable suspicion

that Plaintiffs violated 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.”

There is a second reason why the length of the

detention was not justified by reasonable suspicion.

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

extracurricular activities or involves substantial disorder is guilty

of a misdemeanor.”). 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.

'S 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.

3la

Much of the detention time was spent waiting for the

Deputy Sheriffs’ supervisor 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 particular crime had been committed. Instead, the

Deputy Sheriffs 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 permitted by detention are ones of fact, not

law. See Michigan v. Summers, 452 U.S. 692, 700 n.12

(1981) (listing some investigative techniques that may

be used during a Terry stop: “interrogation[;] .. .

communicat[ion] with others, either police or private

citizens, in an effort to verify the explanation tendered

or to confirm the identification or determine whether

a person of that identity is otherwise wanted|[;] . . .

{and determination 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 understand 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) (“[FJailure to understand

the law by the very person charger vith enforcing it is

not objectively reasonable.”) (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]ltops premised on a mistake of law, even a

32a

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 deputies’ 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 Defendants and the district

court’s denial of summary judgment 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 deputies 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

violating the Vehicle Code. We conclude that Plaintiffs

have raised a genuine issue of material fact as to

whether the deputies 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

33a

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 testimony 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 summary 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 searcn violated

Plaintiffs’ Fourth Amendment rights. Defendants cite

California Vehicle Code § 2806 as justification for this

search. We conclude that, absent consent, the search

was improper.

Section 2806 provides as follows:

Any .. . deputy sheriff . . . having reasonable

cause to believe that any vehicle or combination

of vehicles 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.

34a

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

security 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. Jd. 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 prow de an easy remedy or identify more

serious safety eoncerns. Jd. at 1319.

{20] Portillo does not legitimize the search of

Plaintiffs’ security vehicle. A search’s reasonableness

depends om “the degree to which it intrudes upon an

individual’s privacy, and . . . the degree to which it is

needed for the promotion of legitimate 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 he a more serious safety hazard, and

further inspection of the lights would not likely expose

more serious code violations. None of the Vehicle Code

sections cited by the Deputy Sheriffs turn on whether

the lights are capable of activation. Thus, entry to

35a

activate the lights would not further the government’s

interests.’° We therefore hold that, absent consent,

this search unreasonably intruded on Plaintiffs’

Fourth Amendment rights."”

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 suspicions quickly was

clearly established on the date of the detention in this

case. See Sharpe, 470 U.S. at 686. Moreover, it should

‘© 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.

" 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 circumstances.’ ” 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.

36a

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 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

conclude 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

conditions or more serious code violations. See id. at

1319. Entering the vehicle to turn on the lights was

not likely to provide information about erther. Thus,

the Sheriffs Deputies are not entitled te qualified

immunity.

D. Summary of Fourth Amendment Claims

(23] Entry of summary judgment for the Sheriff's

Department defendants was improper. The deputies

37a

violated Plaintiffs’ 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 Amendment claims. We also reverse the

district court’s denial of summary judgment for

Plaintiffs on the unreasonable detention claim.

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 redundant defendant.”

VI. CONCLUSION

For the foregoing reasons, we hold that Plaintiffs’

First Amendment rights were violated. The individual

’® Plaintiffs argue that Baca is not a redundant defendant because

the Sheriffs Department may have sovereign immunity.

Plaintiffs, however, misstate the law: Local government entities

do not have sovereign immunity. Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690 n.54 (1978).

38a

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 qualified 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 violation of their Fourth Amendment rights

because of the unreasonable 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

judgment for Defendants on both Fourth Amendment

claims and; 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. /

39a

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. SACV 03-386-GLT (MLGx)

{Filed January 24, 2005]

CENTER FOR BIO-ETHICAL

REFORM, INC. ET AL..,

Plaintiffs,

Vs.

LOS ANGELES COUNTY SHERIFF'S.

DEPARTMENT ET AL.,

Defendants.

Nm Ne ee eee ee”

ORDER ON CROSS-MOTIONS

FOR SUMMARY JUDGMENT

Plaintiffs’ motion for summary judgment is

DENIED. Defendants’ motions forsummary judgment

are GRANTED.

1. BACKGROUND

Plaintiffs Paul Kulas and Thomas Padberg are

volunteers for Plaintiff Center for Bio-Ethical Reform,

Inc. In March 2003 Kulas drove a truck around Dodson

40a

Middle School in Los Angeles County displaying on the

side of the truck large graphic images of first-term

aborted fetuses. Padberg followed Kulas in a car.

Plaintiffs began circling the middle school at about

7:30 a.m. to get, according to them, the greatest

exposure for their pictures. School officials and other

individuals complained to Defendant Los Angeles

County Sheriffs Department ( “LACSD”).

Approximately 30 minutes after Plaintiffs began

circling, Sheriffs Deputies Darling and Repcik pulled

Plaintiffs over. Darling and Repcik called Sergeant

Aguilar and Deputy Despot to the scene. Despot also

summoned Defendant Roberts, a school administrator.

Plaintiffs were advised of California Penal Code

section 626.8 pertaining to disrupting a school, were

told they were disrupting the school and its students,

and were ordered to leave the school area and not

return with the graphic images. They left without

incident.

Plaintiffs filed this action under 42 U.S.C. § 1983,

alleging violation of their First and Fourth

Amendment rights and conspiracy to deprive them of

First Amendment rights.

On October 22, 2003, this Court found individual

Defendants Aguilar, Despot, Darling, Repcik, and

Roberts are entitled to qualified immunity and

dismissed them in their individual capacity.’ The

' There is a question whether the Court granted the individuals

qualified immunity on the First Amendment claim only, or on all

claims. Because the Court now grants Defendants’ motions for

summary judgment on all claims, this issue is moot.

4la

Court also dismissed Defendants Baca, Aguilar,

Despot, Darling, and Repcik in their official capacity

as redundant Defendants to LACSD. The Court denicd

Defendants’ motion to dismiss the complaint as to

LACSD and Defendant Roberts in his official capacity.

The Court also denied Plaintiffs’ request for a

preliminary injunction.

Plaintiffs appealed the Court’s October 22, 2003

ruling to the Ninth Circuit, which affirmed. All parties

now move for summary judgment on all claims.

Il. DISCUSSION

Summary judgment is proper if “there is no

genuine issue as to any material fact” and “the moving

party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c).

A. First Amendment and California Penal Code

§ 626.8

Plaintiffs were ordered to leave the streets adjacent

to the school pursuant to California Penal Code section

626.8, which provides:

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

guilty of a misdemeanor if he or she. .

{rjemains there after being asked to leave by

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the chief administrative official of that school

...orbya...sheriff or deputy sheriff... . 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), (a)(1) (West 1999).

Plaintiffs claim application of this statute to their

activities violated their First Amendment right to free

speech.

1. “Lawful Business”

If Plaintiffs’ activities were “lawful business,”

section 626.8 was improperly applied to them. Section

626.8 defines “lawful business” as “a reason for being

present upon school property which is not otherwise

prohibited by statute, by ordinance, or by any

regulation adopted pursuant to statute or ordinance.”

Id. § 626.8(c)(2). Because Plaintiffs’ act was prohibited

by two state statutes, it was not lawful business under

section 626.8.

California Education Code section 44811 states:

“Any ... 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

extracurricular activities or involves substantial

disorder is guilty of a misdemeanor.” Cal. Educ. Code

§ 44811(a). The undisputed facts show at least one

class had to devote class time to discussing Plaintiffs’

conduct. The deviation from the regular curriculum

was a material disruption of the classwork.

/

43a

The undisputed facts show Plaintiffs’ conduct also

caused substantial disorder at the school. First, two or

three girls began crying after seeing the truck. (Pls.’

Statement Uncontroverted Facts § 77 {hereinafter

“SUPF”].) Second, 10-12 boys began planning to throw

rocks at the truck. (Pls. SUF 4 77.) Third, school

administrators had difficulty getting the students from

the area outside the school buildings into the

classrooms, pursuant to school policy. (Roberts Dep. at

38:3-13.) Fourth, at least one class deviated from its

regular curriculum to discuss Plaintiffs’ conduct. (Pls.’

Statement Genuine Issues J 18 [hereinafter “SGI”].)

These facts, taken together, show Plaintiffs’ conduct

caused substantial disorder at the school.’ Plaintiffs’

act violated section 44811.

California Education Code section 32210 provides:

“Any person who willfully disturbs any public school

. is guilty of a misdemeanor... .” Plaintiffs’

disturbance was willful. They drove around te school

from approximately 7:30 a.m. to 8:00 a.m., the time

children typically arrive at school, in order to ensure

the greatest exposure for the images on the truck.

(Pls. SGI 4 12.) They chose a middle school, where

* Defendants also state up to five students left school before the

end of the day because they were upset by Plaintiffs’ images. It

doves not appear Roberts has personal knowledge of this fact. The

fact is not in Roberts’s Declaration. At the preliminary injunction

hearing, Roberts testified the school counselors spoke to the

children who left, but he did not speak to them. (Lehman Decl. Ex.

10 at 25:13-20.) Defendants do not present declarations of the

school counselors or anyone who witnessed the children leaving.

Defendants also do not present schoo] records showing the

children left early. The Court does not consider the fact in this

ruling.

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most children are between 11 and 13 years old.

Plaintiff Kulas has observed children become upset by

the images on prior occasions. Children have reacted

by expressing disbelief, crying, fainting, experiencing

physical illness, making obscene gestures at the truck,

and throwing things at the truck. (Kulas Dep. at 70:18-

71:20; Pls.’ SGI 7 76.) Plaintiffs’ act violated section

32210.

Because Plaintiffs’ act was prohibited by state

statutes, Plaintiffs did not have lawful business at the

school.

2. Disruption

Penal Code section 626.8 also requires Plaintiffs’

presence or acts to “interfere with the peaceful conduct

of the activities of the school or disrupt the school or

its pupils or school activities.” As discussed above,

Plaintiffs’ truck did interfere with the peaceful conduct

of the school and disrupted the school and its pupils.

3. Constitutionally Protected ch

Section 626.8 may not be used “to impinge upon the

lawful exercise of constitutionally protected rights of

freedom of speech or assembly.”

Expressive activity by members of the public may

be prohibited on public sidewalks adjacent to school

grevnds if it “materially disrupts classwork or

invvives substantial disorder or invasion of the rights

of others.” Grayned v. City of Rockford, 408 U.S. 104,

118 (1972) (quoting Tinker v. Des Moines Sch. Dist.,

393 U.S. 503, 513)). Plaintiffs’ expressive activity

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materially disrupted classwork and _ involved

substantial disorder at the school. Plaintiffs did not

have a constitutional right to engage in their

expressive activity on the public streets adjacent to the

school.

The restriction on Plaintiffs’ speech was

constitutional if it was a content-neutral time, place,

and manner restriction that served a significant

government interest, was narrowly tailored to advance

that interest, and left open ample alternative channels

of communication. Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989).

First, “[iJt is axiomatic that the government may

not regulate speech based on its substantive content or

the message it conveys.” Rosenberger v. Rector &

Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995).

“The principal inquiry in determining content

neutrality ... is whether the government has adopted

a regulation of speech because of disagreement with

the message it conveys.” Ward, 491 U.S. at 791.

Plaintiffs have not presented a genuine issue of

material fact showing Defendants restricted Plaintiffs’

speech based on the content of their message. The

parties agree “LASD personnel and Art Roberts

ordered Plaintiffs to stop their speech activity .. .

because Plaintiffs’ pictures were causing a reaction

that they claimed was disruptive.” (Pls. SUF ¥ 50.)

Roberts advised Plaintiffs their pictures were

disruptive to the school and its students. (Pls.’ SGI

{@ 59.) Piaintiffs were told to leave because of the

disruption caused by the graphic pictures, not because

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the pictures concerned abortion or because Defendants

disagreed with Plaintiffs’ viewpoint.*

The restriction on Plaintiffs’ speech was a valid

content-neutral time, place, and manner restriction. it

furthered the significant government interest of

having an “undisrupted school session conducive to the

students’ learning.” Grayned, 408 U.S. at 119 (finding

this a compelling interest). It was narrowly tailored to

advance this interest. Plaintiffs were ordered to leave

only the public streets adjacent to the school area and

were not prohibited from driving their truck on other

public streets. (Pls. SGI J 61.) Finally, it left open

ample alternative channels of communication.

Plaintiffs were not prohibited from conveying their

* There would be a triable issue of fact as to whether the deputies

initially responded to the scene because of the content of

Plaintiffs’ message. The log of the dispatcher’s call states, “Anti-

abortion’ truck with offensive language/pictures is circling the

school and video taping the school and surrounding area.” (Pls.’

SUF Ex. 8 at 71:23-74:9 & Ex. 9.) However, this does not show

Defendants told Plaintiffs to leave because of the content of the

message.

Deputy Repcik wrote in his incident report, “due to the often

volatile nature of the issue of abortion.” (Repcik Dep. at 63:25-

64:5.) This.does not raise a genuine issue of material fagt as to

whether Defendants told Plaintiffs to leave because of the content

of Plaintiffs’ message. Repcik stated he wrote the phrase to

document the volatile and emotional nature of the issue to explain

why Plaintiffs’ conduct caused a “very strong reaction from the

children going to school.” (Repcik Dep. at 63:25 - 65:21.) Deputy

Repcik’s testimony shows Defendants told Plaintiffs to leave

because of the disruption, not because of the content or viewpoint

of the images.

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message in a nondisruptive manner or from going to

any place other than the streets adjacent to the school.

B. Conspiracy Claim

Because there was no violation of Plaintiffs’ First

Amendment rights, Defendants cannot be liable for

conspiracy to violate Plaintiffs’ First Amendment

rights. Olsen v. Idaho State Bd. of Med., 363 F.3d 916,

930 (9th Cir. 2004) (“[T]o state a claim for conspiracy

under (42 U.S.C.] § 1985, a plaintiff must first have a

cognizable claim under [42 U.S.C.] § 1983.”).

C. Fourth Amendment Claim

Plaintiffs claim they were subjected to an unlawful

search and seizure under the Fourth Amendment.

1. Seizure

“The Fourth Amendment prohibits ‘unreasonable

searches and seizures’ by the Government, and its

protections extend to brief investigatory stops of

persons or vehicles that fall short of traditional

arrest.” United States v. Arvizu, 534 U.S. 266, 273

(2002) (citing Terry v. Ohio, 392 U.S. 1 (1968)). Here,

the parties agree Plaintiffs were not free to leave

during the stop. The detention was a “seizure” for

Fourth Amendment purposes. Gallegos v. City of L.A.,

308 F.3d 987, 990 (9th Cir. 2002).

The parties dispute whether Plaintiffs’ detention

was an investigatory stop or an arrest. During an

investigatory stop, “the Fourth Amendment is satisfied

if the officer’s action is supported by reasonable

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suspicion to believe that criminal activity may be

afoot.” Arvizu, 534 U.S. at 273 (internal quotations

omitted). A determination of reasonable suspicion

must consider the totality of the circumstances, and it

requires a lesser showing than that needed to find

probable cause or a preponderance of evidence. Id.

If the detention qualifies as an arrest, Defendants

must show the Deputies had probable cause to arrest

Plaintiffs. Gallegos, 308 F.3d at 990. “There is no

bright line rule for determining when an investigatory

stop crosses the line and becomes an arrest.” Jd. at 991

(internal quotation omitted). The Court conducts a

fact-specific inquiry of the totality of the

circumstances, including how intrusive the stop was

and whether the deputies’ methods were reasonable

given the circumstances. Id.

Many facts regarding the stop are not disputed.

The stop took approximately 75 minutes. For some

period of time, the deputies held Plaintiffs’ driver's

licenses. The deputies did not draw their guns,

handcuff Plaintiffs, tell Plaintiffs they were under

arrest, or place Plaintiffs in a patrol car. Plaintiffs

were able to walk around the general area, talk to each

other, obtain a notepad to take notes, and call their

boss.

Given the totality of the circumstances, this was an

investigatory stop, not an arrest. The stop was not

substantially intrusive, and the deputies’ methods

were rea. onable. See id. at 991-92 (finding a detention

was an investigatory stop rather than an arrest even

when police oulled their guns on the _ suspect,

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handcuffed him, placed him in the patro! car, and took

him to the police station).

To justify the investigatory stop, Defendants must

show the deputies had a reasonable suspicion to

believe criminal activity may be afoot. Plaintiffs denot

seriously contest, and it appears to the Court, the

deputies had a reasonable swspicien. They were

responding to a call about a truck displaying anti-

abortion images, with a video camera, circling a school.

See United States v. Terry-Crespo, 356 F.3d 1170,

1174 (9th Cir. 2004) (holding a sufficiently reliable 911

call supported a reasonable susp.cion justifying an

investigatory stop). The call provided them a

reasonable basis to suspect Plaintiffs were disturbing

the school or engaging in other unlawful activity.

When the deputies located Plamtiffs, they believed

Plaintiffs’ car looked similar to a police car. This gave

them a reasonable suspicion Plaintiffs’ car was

intended to mimic a police car.

Plaintiffs argue the length of the stop was

unconstitutionally long. The length of time is an

important factor in determining whether the stop was

as minimally intrusive as necessary to justify a

reasonable suspicion. United tes v. Sharpe, 470

U.S. 675, 685 (1985). To determine minimal

intrusiveness, the~Court takes into aceount “the law

enforcement purposes to be served by the stop as well

as the time reasonably needed to effectuate those

purposes.” Id. However, the length is not

determinative. See id. (“[Ojur cases impose no rigid

time limitation” on investigatory stops).

50a

Here, the law enforcement purposes served by the

stop were primarily to prevent further disruption at

the school and to evaluate whether Plaintiffs’ follow

car was lawful.* The first responding deputies called

their supervisor, Sergeant Aguilar, to the scene

because they were not familiar with the appropriate

course of action in the situation. Once Aguilar arrived,

they called Deputy Despot, the liaison with Dodson

Middle School. These steps were reasonably needed to

ensure an appropriate response to Plaintiffs’ conduct

while preventing further disturbance at the school.

The record shows it took between 45 and 60 minutes

for Aguilar and Despot to arrive.

Deputy Despot brought Roberts, the assistant

principal of the school, to the scene to explain the

situation to Plaintiffs. This was reasonably necessary

to ensure no further disruption at the school. The

record shows Roberts arrived an hour or more after the

stop.

Plaintiffs present no evidence of delay in calling

Aguilar, Despot, or Roberts to the scene. There also is

no evidence these individuals delayed coming to the

scene after they were called. The time it took for these

individuals to arrive was as minimally intrusive as

necessary.

* The vehicle was a Crown Victoria with outside spotlights, a push

bar on the front bumper, an antenna mounted on the roof and

trunk, red and amber flashing lights, a security cage separating

the rear seat, and a video camera mounted on the dashboard. The

parties do not dispute the deputies initially believed the vehicle

may not have been lawful because it looked similar to a police car,

but ultimately determined it to be a lawful security vehicle.

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During the investigatory stop, the deputies checked

Plaintiffs’ license plates and identifications and

investigated whether Plaintiffs’ security vehicle

violated any laws, which included contacting a traffic

investigator to research the legality of the vehicle’s

equipment. The record does not show the deputies

delayed these investigatory tasks.

The deputies diligently pursued a course of

investigation “likely to confirm or dispel their

suspicions quickly.” Sharpe, 470 U.S. at 686. Seventy-

five minutes was reasonably needed to effectuate the

purposes of the stop. See Gallegos, 308 F.3d at 992

(finding 45-60 minutes was not an unreasonable

length of time to drive to and from the police station

and wait for a supervising officer to arrive, when the

suspect was not handcuffed or in the police car the

whole time).

2. Search

Plaintiffs contend two events constituted unlawful

searches. First, without obtaining Plaintiffs’ consent,

Deputy Repcik entered the “security vehicle” car,

looked for the switch for the flashing lights, and

turned on the lights.

The parties presented no legal authority on this

issue. The Court finds Repcik’s act was not an

unlawful search.

Automobiles, unlike homes, are subjected to

pervasive and continuing governmental

regulation and controls, including periodic

inspection and licensing requirements. As an

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everyday occurrence, police stop and examine

vehicles when license plates or inspection

stickers have expired, or if other violations,

such as exhaust fumes or excessive noise, are

noted, or if headlights or other safety equipment

are not in proper working order.

South Dakota v. Opperman, 428 U.S. 364, 368 (1976).

“The privacy interests in an automobile are

constitutionally protected; however, . . . the ready

mobility of the automobile justifies a lesser degree of

protection of those interests.” California v. Carney, 471

U.S. 386, 390 (1985). Also, “because the passenger

compartment of a standard automobile is relatively

open to plain view, there are lesser expectations of

privacy.” Id. at 391.

Here, Repcik’s inspection of the “security vehicle”

car was reasonable. The deputies believed the vehicle

looked similar to a police car and may have violated

the Vehicle Code. Plaintiffs’ vehicle was readily mobile.

The switch in the passenger compartment was

relatively open to plain view. Entering the vehicle to

turn on the lights was necessary to assess the vehicle’s

features to determine if it violated the Vehicle Code.

Second, Plaintiffs argue their consent to the

deputies’ later search of the car was not free and

voluntary. See Florida v. Royer, 460 U.S. 491, 497

(1983) (“[T]he State has the burden of proving that the

necessary consent was obtained and that it was freely

and voluntarily given ... .”). Whether consent is

voluntary is “a question of fact to be determined from

the totality of all the circumstances.” Schneckloth v.

53a

Bustamonte, 412 U.S. 218, 227 (1973). Voluntary

consent may not be “coerced, by explicit or implicit

means, by implied threat or covert force.” Id. at 228.

Defendants have shown there is no evidence in the

record of explicit or implicit coercion, threats, or force.

Plaintiffs do not identify any such evidence. Plaintiffs

did not have to know they could refuse consent in

order for the consent to be valid. Id. at 248-49. The

consent was voluntarily given. The valid consent

waived Plaintiffs’ right to object to the search. Id. at

235.

Plaintiffs also contend they were arrested, which

precludes voluntary consent. Having found Plaintiffs

were not arrested, this argument fails.

D. Injunctive Relief and Nominal Damages

Because Plaintiffs do not prevail on their civil

rights claims, injunctive relief and nominal damages

are not warranted.

//

//

//

Ill. DISPOSITION

Plaintiffs’ motion for summary judgment is

DENIED. Defendants’ motions for summary judgment

are GRANTED.

DATED: January_24 , 2005.

54a

/s/

GARY L. TAYLOR

UNITED STATES DISTRICT JUDGE

55a

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. SACV 03-386

[Filed April 17, 2003]

CENTER FOR BIO-ETHICAL

REFORM, INC., PAUL KULAS, and

THOMAS PADBERG,

Plaintiffs,

Vv.

LOS ANGELES COUNTY SHERIFF’S

DEPARTMENT (“LACSD”), LEROY D.

BACA, in his official capacity as Sheriff,

LACSD, XAVIER R. AGUILAR,

individually and in his official capacity as

Sergeant, LACSD, DAVE DESPOT,

individually and in his official capacity as

Deputy, LACSD, MARK DARLING,

individually and in his official capacity as

Deputy, LACSD, MARK C. REPCIK,

individually and in his official capacity as

Deputy, LACSD, and ART ROBERTS,

individually and in his official capacity as an

administrative official, Dodson Middle

School,

ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee oe a

56a

Defendants. )

COMPLAINT FOR DAMAGES,

DECLARATORY AND INJUNCTIVE RELIEF

PURSUANT TO 42 U.S.C. § 1983

Plaintiffs, by and through their undersigned

attorneys, bring this Complaint against the above-

named Defendants, their employees, agents, and

successors in office, and in support thereof allege the

following upon information and belief:

JURISDICTION

1. This action arises under the First, Fourth, and

Fourteenth Amendments to the United States

Constitution and 42 U.S.C. § 1983. Jurisdiction is

conferred on this Court pursuant to 28 U.S.C. §§ 1331

and 1343(a)(3).

INTRODUCTORY STATEMENT

2. This is a case asserting the fundamental

constitutional rights of Plaintiffs. Plaintiffs are pro-life

advocates who engage in lawful expressive activity in

the State of California and elsewhere to protest

abortion and to promote respect for human life. This is

a civil rights action challenging the acts of Defendants

and the constitutionality of California Penal Code

§ 626.8 (hereinafter referred to as “Section 626.8") as

applied to Plaintiffs’ pro-life activities. (A true and

correct copy of Section 626.8 is attached to this

Complaint as Exhibit A and is incorporated herein by

reference). According to Defendants, Section 626.8

57a

prohibits Plaintiffs from engaging in their pro-life

activities on the public streets adjacent to a public

school.

3. Plaintiffs seek a declaration that Section 626.8,

as applied, is unconstitutional and a permanent

injunction enjoining its enforcement as applied against

Plaintiffs. Plaintiffs seck nominal damages against

certain Defendants for the past loss of their

constitutional rights. And Plaintiffs seek an award of

reasonable costs of litigation, including attorneys’ fees

and expenses, pursuant to 42 U.S.C. § 1988.

4. Plaintiffs’ claims for declaratory and injunctive

relief are authorized by 28 U.S.C. §§ 2201 and 2202,

by Rules 57 and 65 of the Federal Rules of Civil

Procedure, and by the general legal and equitable

powers of this Court. Plaintiffs’ claim for damages is

authorized by 42 U.S.C. § 1983.

5. Plaintiffs’ prayer for relief regarding costs,

including reasonable attorneys’ fees, is authorized by

42 U.S.C. § 1988.

6. Venue is proper under 28 U.S.C. § 1391(b)

because a substantial part of the events or omissions

giving rise to Plaintiffs’ claims occurred in this district.

PLAINTIFFS

7. Plaintiff Center for Bio-Ethical Reform, Inc.

(“CBR”), is a pro-life, California-based, non-profit

corporation. It is a section 501(c)(3) organization that

is incorporated under the laws of the State of

California.

58a

8. Plaintiff Paul Kulas is an adult resident of the

State of California and a citizen of the United States.

Plaintiff Kulas is a full-time employee of CBR.

9. Plaintiff Thomas Padberg is an adult resident of

the State of California and a citizen of the United

States. Plaintiff Padberg is a CBR volunteer.

DEFENDANTS

10. Defendant Los Angeles County Sheriffs

Department (“LACSD”) is a public entity capable of

being sued. LACSD, through its agents, enforces

Section 626.8 throughout the Los Angeles County.

11. Defendant Leroy D. Baca is the Sheriff for

LACSD. He is responsible for enforcing Section 626.8.

At all relevant times, Defendant Baca was an agent,

servant, and/or employee of LACSD, acting under color

of state law as that phrase is used in 42 U.S.C. § 1983.

Defendant Baca is sued in his official capacity only.

12. Defendant Xavier R. Aguilar is a Sergeant with

LACSD. At all relevant times, Defendant Aguilar was

an agent, servant, and/or employee of LACSD, acting

under color of state law as that phrase is used in 42

U.S.C. § 1983. Defendant Aguilar is sued individually

and in his official capacity.

13. Defendant Dave Despot is a Deputy with

LACSD. At all relevant times, Defendant Despot was

an agent, servant, and/or employee of LACSD, acting

under color of state law as that phrase is used in 42

U.S.C. § 1983. Defendant Despot is sued individually

and in his official capacity.

59a

14. Defendant Mark Darling is a Deputy with

LACSD. At all relevant times, Defendant Darling was

an agent, servant, and/or employee of LACSD, acting

under color of state law as that phrase is used in 42

U.S.C. § 1983. Defendant Darling is sued individually

and in his official capacity.

15. Defendant Mark C. Repcik is a Deputy with

LACSD. At all relevant times, Defendant Repcik was

an agent, servant, and/or employee of LACSD, acting

under color of state law as that phrase is used in 42

U.S.C. § 1983. Defendant Repcik is sued individually

and in his official capacity.

16. Defendant Art Roberts is an administrative

official at the Dodson Middle School, a public school

located in Los Angeles County, California. At all

relevant times, Defendant Roberts was an agent,

servant, chief administrative official, designated

representative of a chief administrative official, and/or

employee of the Dodson Middle School, serving a

public function, acting jointly and in a symbiotic

relationship with Defendants, and acting under color

of state law as that phrase is used in 42 U.S.C. § 1983.

STATEMENT OF FACTS

17. CBR was established in 1990 as a non-profit

public policy and advocacy group 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 such

educational program is the Reproductive Choice

Campaign (“RCC”).

i.

60a

18. The RCC consists of large, colorful pictures

depicting graphic images of first-term aborted fetuses

displayed on the sides of box body style trucks. The

pictures on the sides of the trucks are accurately

captioned as to age, in weeks since fertilization. True

and accurate photographs of an RCC truck are

attached to this Complaint as Exhibits B, C, and D.

19. Plaintiffs’ pictures are not solicitations or

commercial speech; they are political speech. The

purpose of this educational program is to expose as

many people as possible to the reality of abortion,

particularly first-term abortions. The RCC

demonstrates to onlookers that abortion is a violent act

that results in the killing of innocent human life and

is, therefore, contrary to the common good. Plaintiffs

express their pro-life message by displaying these

pictures in public areas throughout the Los Angeles

County and elsewhere.

20. Plaintiffs engage in this educational program on

the public streets and public ways adjacent to middle

schools and high schools throughout Los Angeles

County and elsewhere because there are students at

these schools who have either had or are

contemplating having an abortion without being

informed about the truth or reality of abortion and, in

. many cases, without informing their parents of their

plans to have an abortion or seeking their parents’

consent prior to obtaining an abortion. In some cases,

students are excused from class, taken to an abortion

facility, receive an abortion, and return to class

without parental notification or consent. CBR believes

that students who are old enough to have an abortion

are old enough to see one.

6la

21. On or about March 24, 2003, Plaintiffs were

traveling the public streets adjacent to the Dodson

Middle School in Los Angeles County, California as

part of Plaintiffs’ RCC activities. Plaintiff Kulas was

driving an RCC truck, which displayed the graphic

images of aborted babies. Plaintiff Padberg was

driving an escort vehicle, a Ford Crown Victoria sedan.

Altogether, two vehicles were involved in Plaintiffs’

pro-life speech activity on this day.

22. Plaintiffs commenced their pro-life speech

activity on the adjacent public streets of the Dodson

Middle School at or about 7:30 a.m. Plaintiffs chose

this time because it would ensure the greatest

exposure for their pictures.

23. Plaintiffs were driving their vehicles on the

public streets adjacent to the Dodson Middle School,

circling the area just outside of the school grounds, for

approximately thirty minutes when Defendant Darling

arrived in his marked police vehicle. Several minutes

later, Defendant Repcik arrived in a second marked

police vehicle, turned on his flashing lights, and pulled

over the Plaintiffs. Both police vehicles pulled up

behind the Plaintiffs’ vehicles, which had now pulled

over to the side of the road. School officials at Dodson

Middle School and others had made complaints to

LACSD, seeking to prevent Plaintiffs from displaying

their graphic pictures.

24. Defendant Darling approached Plaintiff Kulas,

who was sitting in the RCC truck, and demanded that

he produce his driver’s license and exit the vehicle.

Plaintiff Kulas asked Defendant Darling why he had

been stopped, and Defendant Darling stated, “You are

62a

driving this truck around with graphic images and

offensive language and scaring the kids,” or words to

that effect. Plaintiff Kulas surrendered his driver’s

license and exited his vehicle as requested.

25. Defendant Repcik approached Plaintiff Padberg

and told him that he could charge him with a “sex

crime” because displaying the pictures was “child

abuse,” or words to that effect. Defendant Repcik

demanded that Plaintiff Padberg produce his driver’s

license and exit the vehicle. Plaintiff Padberg complied

with the demands.

26. Defendants Darling and Repcik conferred for

several minutes and then called for their Sergeant. At

approximately 8:45 a.m., Defendant Aguilar arrived in

a marked police vehicle. Defendants Darling, Repcik,

and Aguilar conferred for several minutes. Defendant

Despot then arrived on the scene in a marked police

vehicle. It was clear to Plaintiffs that Defendants were

devising a way to charge Plaintiffs with a violation of

the law.

27. Defendant Despot approached Plaintiffs and

asked them questions about the escort sedan.

Defendant Despot took several photographs of the

sedan. Defendant Repcik then entered the sedan

without requesting or receiving permission) to do so.

Defendant Repcik began searching the sedan and

eventually turned on the vehicle’s lights.

28. Defendants Repcik and Despot scoured the

sedan looking for a violation of the law. They could not

find one.

63a

29. Defendant Despot then entered his police

vehicle and departed for the Dodson Middle School,

returning several minutes later with Defendant

Roberts.

30. Defendant Despot escorted Defendant Roberts

over to Plaintiffs. Defendant Roberts, who was coached

by the Defendant deputies, told Plaintiffs that their

pictures were disruptive and that they had to leave the

area and not return. Defendant Roberts was willingly

working with the other Defendants to achieve the

objective of preventing Plaintiffs from displaying their

graphic pictures on the public streets adjacent to the

Dodson Middle School. Defendant Darling advised

Plaintiffs of the content of Section 626.8, reading

verbatim portions of this penal code. Defendants told

Plaintiffs that they have been informed pursuant to

Section 626.8, and they must now leave and not return

with their graphic pictures.

31. Because of Defendants’ credible threat to

enforce Section 626.8, which carries penalties of a fine

and imprisonment, Plaintiffs departed the area and

will not return to continue their pro-life speech

activity.

32. At no time did Plaintiffs come into any school

building or upon any of the school grounds of the

Dodson Middle School. Plaintiffs’ pro-life speech

activity was confined to the public streets adjacent to

the Dodson Middle School.

33. The Defendants detained Plaintiffs for more

than one and a half hours before releasing them.

64a

STATUTORY FRAMEWORK

OF SECTION 626.8

34. Section 626.8 states, in relevant part: “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 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 representative, 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).”

35. “This section shall not be utilized to impinge

upon the lawful exercise of constitutionally protected

rights of freedom of speech or assembly.”

36. “(b) Punishment for violation of this section

shall be as follows: (1) Upon a first conviction by a fine

of not exceeding five hundred dollars ($500), by

imprisonment in the county jail for a period of not

more than six months, or by both the fine and

imprisonment.”

FIRST CLAIM FOR RELIEF

(Freedom of Speech)

37. Plaintiffs hereby incorporate by reference all

above paragraphs.

65a

38. By reason of the aforementioned acts and

omissions, engaged in under color of state law,

Defendants have unconstitutionally deprived Plaintiffs

of their freedom of speech rights guaranteed under the

First Amendment to the United States Constitution as

applied to the states and their political subdivisions

under the Fourteenth Amendment, and 42 U.S.C.

§ 1983, in that by enforcing and/or applying Section

626.8 against Plaintiffs’ pro-life speech activity,

Defendants have prevented Plaintiffs from expressing

their opposition to abortion in a public forum.

39. By reason of the aforementioned acts and

omissions, engaged in under the color of state law,

Defendants have also unconstitutionally deprived

Plaintiffs of their freedom of speech rights guaranteed

to them under the First Amendment to the United

States Constitution, as applied to the states and their

political subdivisions under the Fourteenth

Amendment, and 42 U.S.C. § 1983, in that Defendants,

through their acts, policies, practices, and/or customs,

unlawfully and unreasonably detained and searched

Plaintiffs because of their pro-life speech activity.

40. As a direct and proximate result of Defendants’

violation of Plaintiffs’ rights, Plaintiffs have suffered

direct and irreparable injury, and they are entitled to

damages.

SECOND CLAIM FOR RELIEF

(Freedom of Speech Conspiracy)

41. Plaintiffs hereby incorporate by reference all

above paragraphs.

66a

42. By reason of the aforementioned acts and

omissions, and policies, practices, and/or customs,

engaged in under the color of state law Defendants

have conspired to unconstitutionally deprive Plaintiffs

of their right to freedom of speech guaranteed under

the First Amendment to the United States

Constitution as applied to the states and their political

subdivisions under the Fourteenth Amendment, and

42 U.S.C. § 1983, in that Defendants agreed to and

engaged in overt acts that prevented Plaintiffs from

expressing their opposition to abortion in a public

forum.

43. As a direct and proximate result of Defendants’

violation of Plaintiffs’ rights, Plaintiffs have suffered

direct and irreparable injury, and they are entitled to

damages.

THIRD CLAIM FOR RELIEF

(Unlawful Search and Seizure)

44. Plaintiffs hereby incorporate by reference all

above paragraphs.

45. By reason of the aforementioned acts and

omissions, and policies, practices, and/or customs,

engaged in under the color of state law, Defendant

Repcik unconstitutionally searched Plaintiffs’ vehicle

and Defendants Aguilar, Despot, Darling, and Repcik

unconstitutionally seized Plaintiffs’ persons, vehicles,

and other property, without a warrant, without

probable cause that a crime had been, was being, or

would be committed, and without valid consent, and

thus deprived Plaintiffs of their rights to be free of

unreasonable police searches and seizures, to be free

i

b

67a

of warrantless searches and seizures, and to be free of

searches and seizures without probable cause, which

are guaranteed to them under the Fourth Amendment

to the United States Constitution, as applied to the

states and their political subdivisions under the

Fourteenth Amendment, and 42 U.S.C. § 1983.

46. As a direct and proximate result of Defendants’

violation of Plaintiffs’ rights, Plaintiffs have suffered

direct and irreparable injury, and they are entitled to

damages.

WHEREFORE, Plaintiffs ask this Court:

A) to enjoin Defendants, their employees, agents,

and successors in office from enforcing Section 626.8 as

applied against Plaintiffs’ pro-life speech activity as

described herein;

B) to enter judgment declaring that the application

of Section 626.8 to Plaintiffs’ pro-life speech activity as

described herein violates Plaintiffs’ constitutional

rights;

C) to award Plaintiffs nominal damages against

Defendants Aguilar, Despot, Darling, Repcik, and

Roberts in their individual capacities for the past loss

of Plaintiffs’ constitutional rights;

D) to award Plaintiffs their reasonable attorneys’

fees, costs, and expenses pursuant to 42 U.S.C. § 1988

and other applicable law;

E) to grant such other and further relief as this

Court should find just and proper.

68a

Respectfully submitted this 11 day of April, 2003.

THOMAS MORE LAW CENTER

By: /s/

Robert J. Muise *

*Subject to admission pro hac vice

ASHWORTH, HAYES & MORAN, LLP

By: /s/

James A. Hayes, Jr., Esq.

Counsel for Plaintiffs

69a

EXHIBIT A

§ 626.8. Disruptive presence at schools; specified

sex offenders; oilfenses; punishment: not ation

(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, or any specified

sex offender who comes into any school building or

upon any school ground, or street, sidewalk, or public

way adjacent thereto, unless the person is a parent or

guardian of a child attending that school, or is a

student at the school or has prior written permission

for the entry from the chief administrative officer of

that school, is 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 representative, or by a person employed as

a member ofa security or police department of a school

district pursuant to Section 39670 of the Education

Code, or a city police officer, or sheriff or deputy

sheriff, or a Department of the California Highway

Patrol peace officer.

(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.

70a

This section shall not be utilized to impinge upon the

lawful exercise of constitutionally protected rights of ©

freedom of speech or assembly.

(b) Punishment for violation of this section shall be as

follows:

(1) Upon a first conviction by a fine of not exceeding

five hundred dollars ($500), by imprisonment in the

county jail for a period of not more than six months, or

by both the fine and imprisonment.

(2) If the defendant has been previously convicted once

of a violation of any offense defined in this chapter or

Section 415.5, by imprisonment in the county jail for a

period of not less than 10 days or more than six

months, or by both imprisonment and a fine of not

exceeding five hundred dollars ($500), and shall not be

released on probation, parole, or any other basis until

he or she has served not less than 10 days.

(3) If the defendant has been previously convicted two

or more times of a violation of any offense defined in

this chapter or Section 415.5, by imprisonment in the

county jail for a period of not less than 90 days or more

than six months, or by both imprisonment and a fine

of not exceeding five hundred dollars ($500), and shall

not be released on probation, parole, or any other basis

until he or she has served not less than 90 days.

(c) As used in this section, the following definitions

govern the meaning of the following words and

phrases:

7la

(1) “Specified sex offender” means any person required

to register pursuant to Section 290, who has been

convicted of a violation of Section 220, 261, 266, 267,

272, 288, or 289, or of subdivision (c), (d), or (f) of

Section 286, or of subdivision (c), (d), or (f) of Section

288a, or of an attempt to commit any of these offenses.

(2) “Lawful business” means a reason for being present

upon school property which is not otherwise prohibited

by statute, by ordinance, or by any regulation adopted

pursuant to statute or ordinance.

(3) “Continued pattern of unauthorized entry” means

that on at least two prior occasions in the same school

year the defendant came into any school building or

upon any school ground, or street, sidewalk, or public

way adjacent thereto, without lawful business thereon,

and his or her presence or acts interfered with the

peaceful conduct of the activities of the school or

disrupted the school or its pupils or school activities,

and the defendant was asked to leave by a person

specified in paragraph (1) of subdivision (a).

(4) In the case of a specified sex offender, “continued

pattern of unauthorized entry” means that on at least

two prior occasions in the same school year the

defendant came into any schoo] building or upon any

school ground, or street, sidewalk, or public way

adjacent thereto, and the defendant was asked to leave

by a person specified in paragraph (1) of subdivision

(a).

(5) “School” means any preschool or school having any

of grades kindergarten through 12.

72a

(d) When a person is directed to leave pursuant to

paragraph (1) of subdivision (a), the person directing

him or her to leave shall inform the person that if he

or she reenters the place within seven days he or she

will be guilty of a crime.

73a

EXHIBIT B

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