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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2008

## Text

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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.

4a

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).

16a

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

18a

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:

2la

(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

42a

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.

44a

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

45a

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

46a

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.

47a

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

48a

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,

49a

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.

5la

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

52a

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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EXHIBIT C

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EXHIBIT D

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0262%3A2. Public record. Not legal advice.