Petition for Writ of Certiorari — McMahon v. Albany Unified School District
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Supreme Ceurt, U.S.
FILED 1)
NX
021832 WN 17 2003
| Jn The
Supreme Court of the Anited States
¢
DAVID McMAHON,
Petitioner,
V.
ALBANY UNIFIED SCHOOL DISTRICT,. JOE DALE
HUDSON, ALAN RIFFER, DIANNE McNENNY,
MARSHA SKINNER, and PEGGY THOMSEN,
Respondents.
2
7.
On Petition For Writ Of Certiorari
To The California Court Of Appeal
4
PETITION FOR WRIT OF CERTIORARI
2
Vv
WALTER K. PYLE
2039 Shattuck Avenue,
Suite 202
Berkeley, CA 94704-1116
(510) 849-4424
Attorney of Record for Petitioner
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COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. Can the recognized speaker in a meeting deemed
to be a public forum be arrested for disrupting the meeting
by violating “implicit customs” of the meeting, without
first being warned he is in violation of those unwritten
practices? Is not a criminal statute which prohibits such
‘conduct too vague to stand up to First Amenament protec-
tions?
2. Even if such a warning were given, is not such a
statute unconstitutionally vague because it vests virtually
complete discvetion in the hands of meeting officials to
determine whether the speaker has violated implied
customs of the meeting?
3. Does one meeting official’s statement to another
school official that the speaker’s conduct is an “absolutely
inappropriate” activity, and directing that other official to
call the police, sufficiently warn the speaker that he is out
of order and subject to arrest unless he ceases his conduct?
4. Does the “clear and present danger” rule apply to
prevent the speaker’s arrest under such circumstances?
5. Is an arrest the least restrictive means consistent
with free speech to further a government interest in
keeping trash from being displayed on the floor of a
schoolroom? Would a request to the speaker to conclude
his remarks and pick up the trash have been sufficient to
further that interest?
‘i
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED. ........scsssccscsosesscsevoecssers i
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OP LEI DAS Wy vikcsscsinininsseiaeiaaien 1
TORING CIE ssissrsisstssncincmemeaminaattie 1
CONSTITUTIONAL PROVISIONS INVOLVED....... 2
STAT U Cab GE VASE BRO bs cauisistenuiaornhingtendekeeronanttubiens 2
STATEMENT OF THE CABS .cccsssessscsvesssevessonrenscensss 3
REASONS FOR GRANTING THE PETITION ......... 7
5
THE DECISION BY THE CALIFORNIA
COURT OF APPEAL CHILLS THE RIGHT
OF PEOPLE TO SPEAK OUT AT PUBLIC
MEETINGS FOR FEAR OF ARREST............... 7
A. McMahon Was Arrested Without a War-
rant, Which Fact Made Out a Prima Facie
Case of an Unlawful Arrest. The Defen-
dants, to Avoid a Directed Verdict, Had to
Prove That McMahon Had Actually Com-
mitted a Criminal Offense....................cs0008 7
B. As Interpreted by California’s Highest
Court in 1970, Penal Code Section 403 Re-
quired That Before a Person Exercising
First Amendment Rights at a Public Meet-
ing Can Be Lawfully Arrested, Meeting Of-
ficials Must First Warn the Person He Is
in Violation of Meeting Customs and Re-
quest Him to Cvase His Conduct................ 8
ill
TABLE OF CONTENTS -— Continued
Page
C. The Decision of the California Court of
Appeal Now Permits an Arrest of the
Speaker in a Public Fcrum if the Court
Determines That It Was “Self-Evident”
That His Conduct Was Not Frotected by
thee Firat Amenarienit ..........cscsersssecsrsecseses 10
D. The California Court of Appeal Has Sub-
stituted a Vague Community Standard in
Place of an Objective Standard Against
Which Public Speakers Can Measure
Be I iisskasihcnsnncsetncveacsbstncsscthiesscenenns 12
E. A Request to a Third Party to Call the Po-
lice Is No Substitute for a Warning and
Request to the Speaker to Curtail His
I srcdak oie cckdvusixtiniegss cecupnvenskpeneineuionienneis 13
F. The California Court of Appeal’s Decision
Makes the California Statute Unconstitu-
tionally Vague Under the Fourteenth
iii el ecaneslalibnidinin 15
Il. THERE WAS NO CLEAR AND PRESENT
DANGER WHICH WOULD DISPENSE WITH
THE REQUIREMENT THAT THE CHAIR IS-
SUE A WARNING AND A REQUEST TO THE
SPEAKER. NOR WAS ANY OTHER IMPOR-
TANT STATE INTEREST AT STAKE ................ 16
II]. THE RIGHT TO SPEAK FREELY IN A PUB-
LIC FORUM IS A FUNDAMENTAL RIGHT.
THE COURT OF APPEAL’S OPINION AL-
LOWS GOVERNMENTAL BODIES TO EAS-
ILY ELIMINATE FIRST AMENDMENT
a cscs srinessvisnnevensscnisconenssevonsneesteneens 21
IIIT -<cccukennenaviasisisnvsenntearerioasrantovsinieesnnessnebentins 23
iV
TABLE OF CONTENTS -— Continued
Page
APPENDIX A — Opinion of the California Court of
DOG .<sserussversesssesoscissenneneseesesseneecsnntabineesannsnionsics App. 1
TABLE OF AUTHORITIES
Page
CASES
Baggett v. Bullett, 377 U.S. 360 (1964)........ eee eeeeereeeseeee 15
Board of Education v. Pico, 457 U.S. 853 (1982).............. 24
Cervantez v. J. C. Penney Co., 24 Cal.3d 579, 595
EE Te CI vcicciexccerisvincitsimindenienaalaemanne 7
Cox v. Louisiana, 379 U.S. 536 (1965)............ ccc eeeeeeeeneeeees 24
Edwards v. South Carolina, 372 U.S. 229 (1963) ............. 19
Grayned v. City of Rockford, 408 U.S. 104 (1972)............. 15
In re Brown, 9 Cal.3d 612, 510 P.2d 1017 (1973) .............. 18
In re Kay, 1 Cal.3d 930, 464 P.2d 142 (1970)............. passim
Interstate Circuit v. Dallas, 390 U.S. 676 (1968)............... 24
Kolender v. Lawson, 461 U.S. 352 (1983)............. eee ee 15
Madison School District v. Wisconsin Emp. Rel.
Comms, GED UE. Ft (Ae rica 24
McBoyle v. United States, 283 U.S. 25 (1931) ......... eee 15
People v. Malone, 156 App. Div. 10, 141 N.Y.S. 149
(BP axvccussusiscisnsinsnsitipniecaniaatuuniaendeieaeaanaenbaaaaiamaeel 24
Schenck v. United States, 249 U.S. 47 (1919)................004 17
Shuttlesworth v. Birmingham, 394 U.S. 147 (1969)......... 24
Spence v. Washington, 418 U.S. 405 (1974)..........cccceeeeeeeee 16
Tinker v. Des Moines School Dist., 393 U.S. 503
¢. Sennen scatinicnsaniiiagcladaahastanteiimasdiaaiatinaniaaasaaael 19
United States v. Grace, 461 U.S. 171 (1983)............... 20
United States v. O’Brien, 391 U.S. 367 (1968)............. 19, 20
Page
CALIFORNIA STATUTES
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Government Code § 54954.3 .0............cceccccsccessesenseees 4, 20, 23
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FUMES COOGEE © icv eekcisisnserssoscssesncivisiaccummienuacieesiseeneiadisies 3
PRE TIRES WB critcevinsesssissnceirinciiommuniamenn passim
Pete CORR FS GiB cvcrierisscsnsssrsnismeinniaeaae 18
Penal Code § 836 sive cu phuulboreissietcalbaniinein esau lela Leia ies saeianaanaiaiaa 6
PORE CORED © GIB o.ccecccccnsnrseserssikcccreaberninerebtiinenessananneaaniaaas 6
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UNITED STATES CONSTITUTION
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STATUTES AND RULES
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Rule 13.1, Rules of the United States Supreme
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TREATISES
21st Century Robert’s Rules of Order (Philip Lief
CORRS, TNR... Tis ciacsniisintanicdsnacunenmapeniaana 11, 24
1
PETITION FOR WRIT OF CERTIORARI
TO THE CALIFORNIA COURT OF APPEAL
David McMahon respectfully petitions for a writ of
certiorari to the California Court of Appeal for the First
District to review the court’s decision affirming a jury
verdict in favor of defendants on his First Amendment
claim. He contends that the evidence established a prima
facie case of false arrest, which was not rebutted by the
defendants, and he was entitled to a directed verdict on
the issue of liability.
¢
OPINION BELOW
The decision of the California Court of Appeal appears
as Appendix A, and is reported at 104 Cal.App.4th 1275,
129 Cal.Rptr.2d 184 (2002). The order by the California
Supreme Court denying a petition for review appears as
Appendix B, and is unreported.
¢
JURISDICTION
Petitioner sought review of the decision of the Califor-
nia Court of Appeal through a petition for discretionary
review to the California Supreme Court. The California
Supreme Court denied review on March 19, 2003. This
petition is filed within 90 days of that order, and is timely
pursuant to Rule 13.1 of this Court.
The jurisdiction of this court is invoked pursuant to 28
U.S.C. § 1257(a), as a petition for a writ of certiorari to
review the judgment of the highest court of a State where
a right is claimed by petitioner under the Constitution of
the United States.
4
¥
CONSTITUTIONAL PROVISIONS INVOLVED
The First Amendment to the United States Constitu-
tion:
Congress Shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Gov-
ernment for a redress of grievances.
The Fourteenth Amendment to the United States
Constitution, Section 1:
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the State wherein they reside. No State shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any State deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its jurisdic-
tion the equal protection of the laws.
,
vy
STATUTE INVOLVED
Section 403 of the California Penal Code:
Every person who, without authority of law,
willfully disturbs or breaks up any assembly or
meeting that is not unlawful in its character,
3
other than an assembly or meeting referred to in
Section 302 of the Penal Code or Section 18340 of
the Elections Code, is guilty of a misdemeanor.
4
vy
STATEMENT OF THE CASE
David McMahon and his family lived across the street
from Albany High School. As his two sons approached
school age, he began attending school board meetings,
voicing his concerns about earthquake safety, vehicle
traffic, and the litter which the students deposited in the
neighborhood.
When school officials took no action with respect to
the trash generated by the students (and indeed denied
responsibility for it), McMahon began picking up the trash
himself. In addition to numerous paper products, he found
empty beer bottles, and little inch-square plastic baggies,
which, upon inquiry, the police told him were drug para-
phernalia used as “drug containers.” (RT 318.)
On April 30, 1996, Mr. McMahon attended another
school board meeting, in the multi-purpose room at Cor-
nell School. Still trying to spur the Board to action on the
trash problem, he brought with him a number of 13-gallon
plastic kitchen garbage bags containing some of the litter
he had picked up in the neighborhood. Each bag contained
at least one empty alcohol bottle and a little plastic baggie.
’ Matters which are of record but which are not directly referenced
in the opinion of the California Court of Appeal are found in the
Reporter’s Transcript (RT) and the Clerk’s Transcript (CT).
The remainder of the trash was described as “papers,
perhaps bottles” (RT 941); “wadded up pieces of paper” (RT
750); “[blottles, paper cups, trash” (RT 198, 218); “a piece
of brown paper, like brown bag... a Styrofoam cup and
then maybe there was a bottle.” (RT 181.) None of the bags
contained anything hazardous.
All California public agencies are required by law to
set aside part of their agenda to allow the public to com-
ment on matters of public concern, Calif. Gov. Code
§ 54954.3(a), and the Albany School Board included such
an item on their agenda.
When the chair opened the floor for public comment,
the first speaker, a woman told her concerns of how her
daughter had obtained drugs at school, and how her
daughter hed gone from an A-student to failing grades.
(CT 244-245.)
The chair then recognized Mr. McMahon. He spoke
about earthquake safety, about traffic and about the
petition he had been circulating with regards to the new
middle school, and then stated he wanted to talk about
trash. He brought some of the bags of trash he had col-
lected up to the microphone.
He opened up a tarp and started to put some of the
trash on it. (RT 334.) A person in the audience stated,
“Excuse me, kids are in this room tomorrow, and I hope
you're not planning on emptying trash out here on the
floor.” Plaintiff replied that he certainly was, and the
person’ said, “Well I hope you’re prepared to clean it up.”
(CT 614, 629; RT 467-468.)
At that point a board member, McManus, turned to
School Superintendent Hudson, and told him, “Mr. Hud-
son, will you call the police, because this is an absolutely
inappropriate activity to do in — in a schoolroom, because — ”
(1 CT 615, 629.) McManus then moved, there was a
second, and the Board voted, to adjourn the meeting. (1 CT
615, 629.) Superintendent Hudson and the board members
filed out of the room, and Hudson called the police. (RT
243, 399.)
While plaintiff waited for the police to come, he and
the audience discussed community problems and the
school officials’ indifference to some of those problems. (RT
403; CT 615-617, 629-632.) During the discussion with the
audience he first mentioned that the trash contained what
he referred to as “drug paraphernalia.” (CT 273.)
Several minutes later the police arrived. Plaintiff was
still talking with the audience, with his bag of trash
spread out behind him on the tarp.* (RT 197-198.)
Hudson met the police. At that time he told them that
McMahon had exceeded his allotted time to speak and had
* The person in the audience, unknown to Mr. McMahon, was the
school principal. However, that night he was many there as a member
of the audience. (RT 919.)
* The responding police officers and several members of the
audience testified that the trash was all on the tarp. (RT 154.) One of
defendants’ witnesses testified that some of it spilled off the tarp onto
the floor. (RT 938.) We will assume for purposes of this petition that
some of the trash did spill onto the floor.
6
refused to give up the microphone, despite having been
asked several times to do so. (RT 192, 234, 235.) Hudson
later admitted at trial that nothing like that had hap-
pened at all.* (RT 235.) He also admitted at trial that there
were no time limits on speakers at that time. (RT 245.)
California law requires that to make a lawful arrest
for a misdemeanor, the offense must have been committed
in the presence of the person making the arrest. App. 6;
Calif. Pen. Code §§ 836(a)(1), 837, | 1. Sgt. Clemons told
Hudson that if McMahon had in fact refused to relinquish
the microphone, that action appeared to be a misdemeanor
committed not in the officers’ presence, and if Hudson
really wanted plaintiff arrested, he would have to make a
citizen’s arrest. (RT 195, 227.)
Hudson thereupon made a citizen’s arrest of plaintiff
for willfully disturbing a public meeting. The police then
received plaintiff into custody, see Calif. Pen. Code §§ 847,
142(a), by going up to plaintiff where he was speaking,
handcuffing him, leading him out of the building, and
taking him to jail. (RT 405-407.)
Following plaintiff’s arrest, Hudson and others picked
up the tarp and the trash and put it in a receptacle at the
back of the room. (RT 942.) The Board then “reconvened”
the adjourned meeting. (CT 277.)
After a few hours in jail McMahon was “cited out,”
and released. (RT 410.) No charges were filed against him.
* This was after McMahon had obtained a copy of the official tape
recording of the Board meeting.
7
This lawsuit followed, and the case went to trial on
the false arrest/false imprisonment cause of action. The
first trial ended in a hung jury. The second trial, after
McMahon’s motion for a directed verdict was denied,
ended in a judgment on the verdict for the defendants.
App. 5.
@
_
REASONS FOR GRANTING THE PETITION
I.
THE DECISION BY THE CALIFORNIA
COURT OF APPEAL CHILLS THE RIGHT
OF PEOPLE TO SPEAK OUT AT PUBLIC
MEETINGS FOR FEAR OF ARREST.
A.
McMahon Was Arrested Without a Warrant,
Which Fact Made Out a Prima Facie Case of
an Unlawful Arrest. The Defendants, to Avoid a
Directed Verdict, Had to Prove That McMahon
Had Actually Committed a Criminal Offense.
Under California law, a peace officer may arrest for
probable cause, but for a citizen’s arrest to be legal, a
misdemeanor offense must have “actually been committed
or attempted in his presence.” Cervantez v. J. C. Penney
Co., 24 Cal.3d 579, 587, 595 P.2d 975 (1979). An arrest
without a warrant creates a prima facie case of wrongful
arrest, and the burden of proof shifts to the defendants to
justify the arrest. Jd. at 592.
The California Court of Appeal properly recognized
that it was the defendants’ burden to justify the arrest.
App. 6. This shift in the burden means that if there was
any substantial gap in the evidence necessary to show that
8
an oifense was actually committed, McMahon was entitled
to a directed verdict.
B.
As Interpreted by California’s Highest Court
in 1970, Penal Code Section 403 Required
That Before a Person Exercising First Amendment
Rights at a Public Meeting Can Be Lawfully
Arrested, Meeting Officials Must First Warn
the Person He Is in Violation of Meeting Customs
and Request Him to Cease His Conduct.
- California Penal Code §403 prohibits willfully
“disturbing” a public meeting.
The language of the statute, supra, pp. 2-3, is ex-
tremely broad in its literal terms, and its potential for
infringing on First Amendment rights is apparent. Some 30
years ago the California Supreme Court observed that “if
the section were literally applied with the breadth of
coverage that its terms could encompass, the statute would
be constitutionally overbroad and could not stand.” Jn re
Kay, 1 Cal. 930, 941, 83 Cal. Rptr. 686, 464 P.2d 142 (1970).
The Kay court therefore set about narrowing the legal
interpretation of the statute so it would meet First
Amendment requirements. As interpreted by the Califor-
nia high court, a person violates the statute only if he
willfully violates explicit rules or implied customs and
usages of the meeting, of which he knew or should have
known. Kay at 943.
But that did not fully resolve the overbreadth issue,
for there was still the issue whether the law can punish
someone who is exercising First Amendment rights for
violating unwritten customs — “implicit” customs, as the
9
Kay court characterized them, Kay at 943, 946 — by saying
he should have known about them. Many people —
certainly newcomers — are simply unfamiliar with even
the written rules of a particular meeting.
There were other practical considerations as well. The
Kay court recognized that “[mJeeting rules are seldom
carefully spelled out or well known to the audience,” and
other rules and “tacit understandings” are “cloaked in
obscurity and uncertainty.” Kay at 945, n. 12. Even if the
rules are clear, said the court, meeting officials will “com-
monly suspend or simply ignore such rules to expedite the
work of the meeting.” Jbid. In addition, silence of meeting
officials in the face of unusual activity “necessarily sug-
gests” that the activity is permitted, or at least that
officials do not intend to enforce prohibitary rules to the
contrary. Ibid.
To meet these very practical uncertainties, the court
construed the statute to include a notice requirement.
Before a person can be arrested for disturbing a public
meeting by violating “implicit customs or usages” of the
meeting, Kay at 943, meeting officials must let the person
know he is in violation of the rules. At page 945 of the Kay
decision, the California Supreme Court put it this way:
Generally, if disturbances are occasioned by non-
violent exercise of free expression, section 403
will require that defendants be shown to have
engaged in such conduct with knowledge, or un-
der circumstances in which they should have
known, that they were violating an applicable
custom, usage or rule of the meeting. In in-
stances in which the appropriate standard of
conduct lies in doubt, a warning and a request
that defendants curtail their conduct, either by
officials or law enforcement agents, should
| Dae eee RS eg eee USER Tete aR IS
10
precede arrest or citation.” Kay at 945 [Footnotes
omitted].
Following the Kay decision, persons exercising their
right to speak up at public meetings always knew where
the line was drawn between protected free speech and
unprotected criminal activity, because the chair of the
meeting had to first explicitly draw such a line and tell the
speaker where the line had been drawn. Speakers might
dispute exactly where the line should be drawn, but they
could safely speak out, even provocatively, with the knowl-
edge that they could not be arrested unless and until a line
was actually drawn.
C.
The Decision of the California Court of Appeal Now
Permits an Arrest of the Speaker in a Public
Forum if the Court Determines That It Was
“Self-Evident” That His Conduct Was
Not Protected by the First Amendment.
Now that has all changed. Now, says the California
Court of Appeal, a speaker in a public forum — even the
recognized speaker to whom the chair has granted the
floor — can be arrested even if no line is drawn. Now the
speaker can be arrested if it is, or should be, “self-evident”
where the line would have been drawn. App. 14.
No longer does silence by meeting officials in the face
of unusual or raucous activity imply that the activity is
permitted, as the Kay decision had said. Kay at 945, n. 12.
When McMahon announced his intentions to empty the
trash out onto the tarp, the chair remained silent; the only
response was from a member of the audience, who said,
“Well, I hope you're prepared to clean it up.” App. 3. But
acquiescence no longer really means acquiescence.
11
Now the speaker must assume that a line will always
be drawn, and he must also calculate accurately exactly
where this imaginary line will be drawn. To be sure he is
safe from arrest, he must divine not only where he thinks
the line should be located, but where he thinks the chair of
the meeting would draw it, and where a judge or jury, who
did not even attend the meeting, will say, months or years
later, where the line should have been drawn.
Indeed, our speaker may now not even rely on an
explicit meeting rule which requires an express warning
that the speaker is out of order. Board President Riffer
testified that Board meetings were governed according to
Robert’s Rules of Order. (RT 823.) A perusal of Robert's
reveals a section (“Guidelines for Chairs”] which sets out
specific procedures to be employed when the chair believes
a speaker is out of order. 21st Century Robert’s Rules of
Order, Philip Lief Group, Inc., 1995 [Exhibit 15 at trial], p.
190-191. The chair should give a warning, such as, “The
member is out of order.” Robert’s, supra, at 190. If after
several attempts a member of the meeting will still not
behave in an appropriate manner, the chair can “name”
the member, and the chair “explains the offense to the
member.” Id., at 193. If the member still does not curtail
his conduct, he may be asked to leave the meeting. [bid.
Only if the member refuses all attempts and admonitions
by the chair should the chair consider asking the police to
“escort” the member from the meeting. bid.
The Court of Appeal’s decision means that now a
speaker, in addition to figuring out what others think is
appropriate conduct, must also be able to discern when an
unwritten rule trumps an explicit rule.
0 EEE
12
How can a speaker make sense out of this? How does
a speaker know what actions are permitted by the First
Amendment? Under such circumstances, can it seriously
be denied that people who wish to voice their concerns to
their elected representatives in a public forum will forego
not only illegal activity, but protected speech as well, in
order to be sure they do not step too close to an imaginary
line that a judge might draw years after the fact? Is not
some warning to a recognized speaker necessary, whether
or not it is the exact warning described in Kay?
Imagine the effect this new standard will have.
Imagine the power it gives to meeting officials to cut off
unpopular debate — a speaker with an unpopular point of
view can simply be arrested, without further warning, and
physically removed from the forum.
Imagine the effect on potential speakers. Now in order
to protect against a possible miscalculation of how others
will view his conduct, the speaker must factor in an off-
limits buffer zone which includes protected conduct, just to
be sure he has taken into account the wide range of
sensibilities of any person who might later hear his case.
D.
The California Court of Appeal Has Substituted
A Vague Community Standard in Place of an
Objective Standard Against Which Public
Speakers Can Measure Their Conduct.
The Court of Appeal has effectively substituted some
vague community standard for the objective tests that
have previously been required by the courts to ensure
adequate “breathing room” for the First Amendment.
13
But such a “community standard” will vary with the
community, and even from person to person in the
community. For example, the Court of Appeal thought it
was obvious that dumping out the trash constituted a
crime. But responding police officers, who saw the same
trash, told Superintendent Hudson that McMahon was not
committing a crime in their presence, and for that reason
they could not arrest him. (RT 249.) Even Board Member
McManus, the person who directed Hudson to call the
police in the first place, testified that he did not think Mr.
McMahon had committed a crime. (RT 958.)
Is the conclusion of an appellate court, who was not
even present at the meeting, more valid than the persons
who were actually there? If so, why?
These diverging opinions as to the legality of McMa-
hon’s actions show the folly of abandoning an objective,
bright line test such as the one adopted in the Kay case. A
meeting rule based on community standards which depend
on how sensitive a person may be, will not work. The First
Amendment is too important to allow it to change, chame-
leon-like, depending on the community and indeed the
individual meeting.
E.
A Request to a Third Party to Call the Police
Is No Substitute for a Warning and Request
to the Speaker to Curtail His Conduct.
The Court of Appeal based its decision primarily on its
assessment that it was self-evident that it was a criminal
offense to dump out trash on a meeting room floor that
would be used by children the next day. App. 14.
14
The court’s opinion suggests, in the alternative, that
even if the First Amendment does require that an arrest
be proceeded by notice to the speaker that he is in serious
violation of the ruJes of the meeting, then the evidence at
trial showed that a warning had been given. More specifi-
cally, the court said that Board Member McManus’ state-
ment to Superintendent Hudson, made within earshot of
McMahon, saying that Mr. McMahon’s conduct was “abso-
lutely inappropriate,” and directing Mr. Hudson to call the
police, “adequately gave McMahon the notice contem-
plated in Kay” that he was out of order and subject to
arrest. App. 15.
Yet not a single defendant contended that McMahon
had been requested to refrain from his activity. Anyone
who was specifically asked, agreed that no such request
had been made. For example, Alan Riffer, President of the
School Board and chairman of the meeting, was ques-
tioned whether anyone asked Mr. McMahon not do dump
garbage on the floor. He responded, “No. Mr. McManus
made a statement, not a request.” (RT 826.)
The need for certainty is manifest from the conflicting
conclusions of the meeting chairman and the Court of
Appeal. A person exercising his First Amendment rights
should not be held to a higher standard than,.the chairman
of the meeting itself. Nor should he be required to bet on
whether the judge who decides his case will be more
sensitive than Mr. Riffer.
It is clear that the reason why the Kay court required
a warning before an arrest could be made pursuant to Penal
Code § 403 when First Amendment rights were implicated
_ was to eliminate any uncertainty as to whether meeting
officials consider the speaker’s conduct worthy of an
arrest. Now it is immaterial that at least some reasonable
15
persons would not have interpreted Board Member
McManus’ comment as a warning and request. Now the
speaker in a public forum must restrict his conduct to that
which is unquestionably safe in the eyes of every person
who may evaluate his conduct, and thereby steer far wider
of the unlawful zone than the First Amendment requires.
Long ago this court stated, “Free speech may not be so
inhibited.” Baggett v. Bullett, 377 U.S. 360, 372 (1964).
F.
The California Court of Appeal’s Decision
Makes the California Statute Unconstitutionally
| Vague Under the Fourteenth Amendment.
The California appellate court’s decision makes
flexible the interpretation of the limits of the First
Amendment, and allows government agencies, judges and
juries to enforce the criminal law based upon their per-
sonal predilections. A law which permits such enforcement
is unconstitutionally vague under the Fourteenth Amend-
ment. Kolender v. Lawson, 461 U.S. 352, 358, 261 (1983).
The law should give the world a warning of what the law
intends to do if a certain line is passed, and to make the
| warning fair, the line should be clear. McBoyle v. United
| States, 283 U.S. 25, 27 (1931).
A vague statute is even more dangerous when the First
Amendment is involved. The damage to First Amendment
protections is “quite costly when the vagueness of a statute
may inhibit the exercise of First Amendment freedoms.”
Baggett v. Bullett, supra, 377 U.S. at 379; see also Grayned
v. City of Rockford, 408 U.S. 104, 108-109 (1972).
McMahon’s non-verbal conduct was_ sufficiently
“expressive” for First Amendment protection because he
intended “to convey a particularized message” where the
| eeoen
16
likelihood was great that the message will be understood
by those who heard it.° Spence v. Washington, 418 U.S.
405, 410-411 (1974).
Il.
THERE WAS NO CLEAR AND PRESENT
DANGER WHICH WOULD DISPENSE WITH
THE REQUIREMENT THAT THE CHAIR
ISSUE A WARNING AND A REQUEST TO
THE SPEAKER. NOR WAS ANY OTHER
IMPORTANT STATE INTEREST AT STAKE.
The California Court of Appeal thought the illegality
of McMahon’s actions were so obvious that the court’s
opinion does not spell out exactly why dumping trash onto
a tarp placed on a schoolroom floor should be a “self-
evident” violation of the law. There is nothing in the Court
of Appeal’s opinion saying that the trash contained any-
thing remotely hazardous, even if some of the trash did
spill off onto the floor, and even if it was in a room “where
children eat lunch” the next day. App. 14. The record itself
shows that the specific testimony of the witnesses all
described only innocuous waste, mostly paper. They
described it as “papers, perhaps bottles” (RT 941); “wadded
up pieces of paper” (RT 750); “[bJottles, paper cups, trash”
(RT 198, 218); “a piece of brown paper, like brown bag...
a Styrofoam cup and then maybe there was a bottle.” (RT
181.) No one described any animal or vegetable matter, or
* It is likely that McMahon’s message did get across to at least one
member of the Board. Immediately after the Superintendent was
directed to call the police and the motion to adjourn was made, Board
Member Skinner said, “I think the point’s been made.” (CT 272.)
17
hazardous materials. To the contrary, all persons who were
| asked the question specifically disclaimed any hazardous
content in the trash. For example, Craig Boylan, the
school principle, testified, “I didn’t see any specific mate-
rial that I thought was dangerous.” (RT 942.)
Whatever fears the appellate court had for children
using the room the next day, the Board does not seem to —
have shared them. The record shows that after the police
took Mr. McMahon away, Superintendent Hudson and
others simply picked up the tarp and the trash and put it
in a receptacle at the back of the room. (RT 942.) This is
not surprising, for the children were likely to be harmed
more by whatever was tracked in on the shoes of the
audience than they were from a paper cup or an empty
bottle which may have fallen off the tarp.
Nor did the Court of Appeal weigh any potential
dangers against the means necessary to eliminate such a
danger. The court focused on a statement in Kay that a
request and warning should be given when the “appropri-
ate standard of conduct lies in doubt,” and reasoned from
that language that a warning is not necessary in every
case. App. 14.
That conclusion is undoubtedly true, but only in rare
cases. The only excepiion we can think of is when a danger
to public safety is created. One cannot yell fire in a
crowded meeting. See Schenck v. United States, 249 U.S.~—
47 (1919). But such conduct falls within another, different
rule of law which protects against arbitrary arrests — the
requirement of a “clear and present danger” before a
person exercising First Amendment rights can be arrested.
The Court of Appeal soundly rejected McMahon’s
contention that he was entitled to a jury instruction that
| Pannen eee
18
in order for the defendants to justify the arrest on the
basis that McMahon’s conduct created a danger to anyone,
“that the justification must include proof of not only a
danger, but a clear and present, i.e., immediate, danger.”
App. 18. The court reasoned that although the clear and
present danger had been applied to other California
criminal statutes, it had never been applied to Penal Code
§ 403. “McMahon was arrested for a violation of Penal
Code section 403, not 415 [the disorderly conduct statute].
Nothing in section 403 or in the Supreme Court’s opinion
in Kay imposes a clear and present danger requirement.”
App. 13. The court then makes the cryptic statement that
the “danger and safety issues” were considered only in
deciding whether McMahon’s conduct violated the customs
and usages of the meeting “held in a schoolroom where
young children are cared for.” App. 13-14; see also App. 18,
n. 3.
But even if the “danger issues” were considered in the
context of meeting rules, does not the First Amendment
require that only clear and present dangers be considered?
A governmental agency cannot eliminate the protections of
the First Amendment, for example, by adopting a “meeting
rule” that prohibits protected speech from creating a
possible danger, or a danger at some future time. The First
Amendment outweighs governmental interests in unspeci-
fied potential dangers at some time in the future.
* One of the cases cited by the court, Jn re Brown, 9 Cal.3d 612,
623, 510 P.2d 1017 (1973) also applied the clear and present danger to
California’s unlawful assembly statutes (Pen. Code § 407, § 408).
19
Not a single witness at the trial voiced any specific
concern over the safety of the school children who would
use the room the next day. The only concern was the one
voiced by the California appellate court, which was a
vague undifferentiated fear for the children who ate lunch
there. “But, in our system, undifferentiated fear or appre-
hension of disturbance is not enough to overcome the right
to freedom of expression.” Tinker v. Des Moines School
Dist., 393 U.S. 503, 508 (1969)
This court has recognized that freedom of speech,
including expressive conduct, is protected against pun-
ishment unless “shown likely to produce a clear and
present danger of a serious substantive evil that rises far
above public inconvenience, annoyance or unrest.” Ed-
wards v. South Carolina, 372 U.S. 229, 237 (1963).
In more recent cases this court has taken a somewhat
different approach. In United States v. O’Brien, 391 US.
367 (1968) the court promulgated a four-pronged test, to
determine whether a law unduly infringes on the First
Amendment. To be valid, (1) the law must be within the
constitutional power of the government; (2) the law must
further an important governmental interest; (3) the
governmental interest must be unrelated to the suppres-
sion of free expression; and (4) the restriction can be “no
greater than is essential to the furtherance of that inter-
est.” Id. at 377. In a later decision, this court stated that
restrictions on speech will be upheld only if narrowly
20
drawn to accomplish a “compelling” governmental inter-
est.’ United States v. Grace, 461 U.S. 171, 177 (1983).
The facts of the case at bar clearly do not meet factors
(2) and (4) of the O’Brien test. There was no evidence that
the trash was hazardous, and the possibility that “other
speakers would have had to stand near the trash” and that
audience members would have been forced to “peer over a
mound of garbage in order to watch a public body perform
its duty,” App. 17, we submit, are not zmportant govern-
mental interests.
California law requires public agencies to devote part
of every meeting to comments by the public. Calif. Govt.
Code § 54954.3(a). Mr. McMahon was not an interloper
who walked into the meeting and dumped out trash onto
the floor, as the Court of Appeal treated him. App. 13. In
fact he was the recognized speaker whom the chair had
granted permission to speak, and who was using the trash
to illustrate a problem he was trying to get the Board to
resolve. The state’s primary interest, at the moment
McMahon was speaking, was that he be permitted to
present his views to the Board. Indeed, the California
Government Code required it. Mr. McMahon’s display of
the trash did not impair the conduct of the meeting; it was
a legitimate element of it.
" These pronouncements by this court are consistent with the
California Supreme Court’s decision in In re Kay, supra, 1 Cal.3d 930
where the court said that restrictions on First Amendment rights “must
be drawn with a narrow specificity calculated to prevent repression of
expressive activities as to which restriction is constitutionally forbid-
den” (Kay at 941), and that Penal Code Section 403 can be used only to
promote “an important state interest.” (Kay at 944 [italics in original].)
21
Nor was the arrest of McMahon the least restrictive
means to correct whatever government interest the Board
thought it was protecting. A simple request to Mr. McMa-
hon to conclude his remarks and pick up his trash would
have resolved whatever problem the Board thought
existed, in far less time than it took to arrest Mr. McMa-
hon.
None of the other facts justify resort to an arrest.
McMahon could not be arrested for continuing to talk to
the audience after the meeting was adjourned, nor for
failing to pick up the trash “[e]ven after the police ar-
rived.” App. 15. Even if one were to conclude that a meet-
ing was still going on after the adjournment, only “lawful”
meetings are protected by Penal Code § 403. Once a
meeting of a public agency is adjourned, it cannot be
recommenced before its next scheduled meeting unless
proper statutory notices are given of a special meeting.
Calif. Govt. Code § 54955. After the meeting was ad-
journed, there was no “lawful meeting” to disrupt.
ITI.
THE RIGHT TO SPEAK FREELY INA PUBLIC -
FORUM IS A FUNDAMENTAL RIGHT. THE COURT
OF APPEAL’S OPINION ALLOWS GOVERNMENTAL
BODIES TO EASILY ELIMINATE FIRST
AMENDMENT PROTECTIONS.
The danger of giving meeting officials such broad
power to arrest a speaker in a public forum cannot be
overemphasized. It allows government agencies to cut off
unpopular debate with no practical remedy to a speaker. It
allows government agencies to refuse to respond to the
pleas of it’s citizens.
22
Mr. McMahon’s case is illustrative of what the Court
of Appeal’s ruling can do.
McMahon’s concerns had been presented to the Board
before, both through his statements at Board meetings
and in the form of a petition he had circulated in his
neighborhood and which he sought to present to the Board
the night he was arrested. The petition detailed McMa-
hon’s concerns that the Board had avoided filing a full
environmental impact statement. when the Board proposed
the new middle school. He presented his petition a total of
three times, but each time it was suppressed by the School
Board. McMahon sought to prove at his trial that his
arrest was nothing more than another attempt to suppress
his legitimate concerns. The appellate court’s decision has
thwarted his efforts.
Moreover, the entire process in the proceedings before
the School Board and throughout the court proceedings
disregarded the presumption of innocence. The law gives
to a person arrested without a warrant a presumption of
innocence in a civil lawsuit just like the presumption
afforded a criminal defendant. The proceedings in the case
at bar, culminating in the decision of the Court of Appeal,
deprived McMahon of this presumption of innocence. The
law should presume that the speaker in a public forum is
acting within the law. The decision of the Court of Appeal
has shifted the burden to the speaker, and now all speak-
ers must take the safe course, instead of the course fa-
vored by the principles of free speech.
The expression of one’s views on matters of public
concern also takes on political overtones. The matters
raised by McMahon at the Board meeting and the Board’s
efforts to suppress his concerns tend to show that what
23
was interrupted was not mere speech, but political speech.
Political process should tend toward truth. The Board’s
reaction by having McMahon arrested are evidence of a
political pathology that has supplanted the reasoned
debate envisioned by the Framers of the Constitution.
4
v
CONCLUSION
There are thousands of state and local boards, agen-
cies and commissions in California. Under California’s
Open Meeting Law, every one of those government agen-
cies is required to allocate a certain portion of their agenda
to allow comment by the public on matters of public
concern. Calif. Government Code § 54954.3(a). Every
person who steps up to the microphone at one of those
meetings, every day, every month, every year hereafter,
will be affected by the Court of Appeal’s decision in this
case. Every one of those speakers will be subject to arrest
— without warning — if the discussion becomes heated and
one of the meeting officials turns to another official and
says, “Call the police! This is an inappropriate activity!”
Is this good for America? Can a statute which requires
such prescience on the speaker’s part — under pain of
arrest — be allowed to govern the actions of speakers in a
public forum?
David McMahon waited his turn to address the local
School Board about his concerns about matters over which
the Board had jurisdiction. His display of trash generated
by the students was “evidence” in support of his “testi-
mony” about conditions he sought to correct. The Board’s
response was to terminate the meeting and arrest Mr.
McMahon.
24
It is eminently reasonable to require that a speaker in
a public forum does not have to guess when meeting
officials consider him subject to arrest. Such a rule com-
ports with generally accepted meeting rules, as exempli-
fied by guides such as Robert’s Rules of Order. It honors
the requirement of the California Penal Code that any
disruption of a public meeting be willful. See People uv.
Malone, 156 App. Div. 10, 141 N.Y.S. 149, 152 (1913)
[speaker did not violate similar New York statute until the
chairman of the meeting asked the speaker to cease her
conduct and warned her to sit down]. And it protects free
speech in a public forum.
A school board meeting at which the public are per-
mitted to express their ideas is per se a public forum.
Madison School District v. Wisconsin Emp. Rel. Comm’n,
429 U.S. 167, 178-179 (1976) (Brennan, J., concur.ing).
Protections of the First Amendment are not dependent
on a particular audience’s reaction, Cox v. Louisiana, 379
U.S. 536, 551 (1965) nor does the law permit a public
board to determine what is included within the term
“acceptable conduct” in the exercise of free speech. Such
would be nothing less than a prohibited “roving commis-
sion,” empowering public officials to dispense or withhold
permission to speak according to their own opinions
regarding the potential effect of the activity in question.
Interstate Circuit v. Dallas, 390 U.S. 676, 688 (1968);
Shuttlesworth v. Birmingham, 394 U.S. 147, 153 (1969).
“A school board is not a giant bureaucracy far removed
from accountability for its actions; it is truly ‘of the people
and by the people.’” Board of Education v. Pico, 457 U.S.
853, 891 (1982) (Burger, C. J., dissenting). This decision
gives governmental agencies carte blanche to hear or not
25
to hear speakers, to arrest whom they, in their sole discre-
tion, deem to be engaging in “inappropriate” conduct, with
no announced standards to guide them or the speakers.
Now the government has, according to the California
Court of Appeal, been given the power to arrest without
warning. Concerned citizens who do not wish to risk arrest
are sentenced to silence, or, at best, tepid voices of ap-
proval of whatever actions the governmental body might
take. No court has ever before permitted such governmen-
tal control over speech in a public forum.
What is a “self-evident” violation of the law is still a
mystery. The speaker in a public forum has no clearly
defined standard by which to gauge his conduct, and,
judges and juries, who must evaluate what was “self-
evident” months or years later, have no standard to guide
them.
Is this good First Amendment law? It affects thou-
sands of persons. This court should grant the petition,
examine the issues, and decide the question.
Respectfully submitted,
WALTER K. PYLE
2039 Shattuck Avenue,
Suite 202
Berkeley, CA 94704-1116
(510) 849-4424
Attorney for Petitioner
App. 1
Filed 12/31/02
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
DAVID McMAHON,
Plaintiff and Appellant, A093980
i (Alameda County
ALBANY UNIFIED SCHOOL Super. Ct. No. 7846719)
DISTRICT, et al.,
Descendants and Respondents.
Here we hold that appellant David McMahon’s motion
for directed verdict was appropriately denied and that the
jury properly rejected his false arrest claim. His conduct of
dumping gallons of garbage on the floor of a schoolroom
during a school board meeting was sufficient to support an
arrest for disturbing a public meeting and was not speech
protected by the First Amendment. We reject McMahon’s
other claims of error as well and affirm the judgment.
Factual and Procedural Background
The events at issue here occurred at the April 1996
meeting of the board of the Albany Unified School District
(the District), attended by the five board members and
School Superintendent Dale Hudson. Between January
and April 1996, the board held its meetings in the multi-
purpose room of Cornell Elementary School. Meetings
included time during which members of the public could
App. 2
speak to the board. Speakers used a microphone located in
front of the board members and Hudson, who sat at tables
facing the audience.
Before the meeting in question, McMahon had at-
tended several other board meetings at Cornell Elemen-
tary School. At two of those meetings he spoke about trash
left by Albany High School students in the neighborhood
around the campus. McMahon began picking up litter in
the area. He brought a bag of this rubbish to the board
meeting in February 1996, and lifted it in the air as he
discussed the trash problem. McMahon told the board that
the bag contained drug paraphernalia and alcohol con-
tainers. He did not empty the bag. No board member
prevented McMahon from speaking at the February board
meeting or any other meeting. :
About 15 people were in the audience of the April
board meeting. McMahon brought five 13-gallon bags of
trash and placed them in the back of the room before the
meeting began. He had been collecting the garbage over
several weeks. During the public comment period, McMa-
hon addressed the board. He spoke about seismic retrofit-
ting and traffic improvements related to the building of a
new middle school. McMahon then told the board he
wanted to discuss trash. He said, “Excuse me one moment
while I bring up some trash.”’ He went to the back of the
room and retrieved two or three bags, gloves and a plastic
" The meeting was tape-recorded. A copy of the tape, played for the
jury, was admitted in evidence. A copy of the transcript was provided to
assist the jury in listening to the tape, and was included in the record
on appeal. (Cal. Rules of Court, rule 203.5.) We have listened to the
tape and reviewed the transcript.
App. 3
tarp. As McMahon opened the tarp, board president Alan
Riffer asked, “What is your intent, because this period is
matters to address the Board, and we need to have some
limit on — and so that we can move on to the rest of the
agenda.” McMahon replied, “My intent is to talk about
public sefety as related to trash. And to underscore my
point. ...” McMahon then spread the tarp on the floor and
untied the bags. Craig Boyan, principal of Cornell school,
was seated in the front row of the audience. Rising from
his chair, Boyan called out to McMahon, “Excuse me, kids
are in this room tomorrow, and I hope youre not planning
on emptying trash out here on the floor.” McMahon re-
plied, “I certainly am,” to which Boyan responded, “Well I
hope you're prepared to clean it up.” The multipurpose
room was used as the school’s cafeteria and student
assembly room and for an after-school childcare program.
Meals for Cornell and other elementary schools were
cooked in the kitchen adjacent to the multipurpose room.
McMahon, wearing gloves, lifted a bag and dumped its
contents on the tarp. Although McMehon was uncertain
how many bags he emptied, an audience member saw him
dump two bags of garbage. Because McMahon had not
fully spread the tarp, some of the trash spilled onto the
floor. Principal Boyan described the amount dumped as
“substantial,” “enough to fill up the tarp.”
By this time, superintendent Hudson was standing.
Board member McManus said to Hudson, “[W]ill you call
the police, because this is an absolutely inappropriate
activity to do ... in a schoolroom.... ” McMahon re-
sponded, “Get the police here because there are some
things that I would like the police to see in this trash.” The
meeting was then adjourned and the board left the room.
McMahon announced, “There are drug paraphernalia in
App. 4
this trash, there are bottles of alcohol in this trash.”
Although McMahon claims the board was gone when he
described the contents of the bags, one board member
heard the remark as she was leaving the room. The board
remained in the adjoining kitchen while McMahon contin-
ued emptying trash and speaking to the audience. Hudson
called the police.
McMahon was still talking to the audience when the
police arrived. Hudson explained that the board wanted
McMahon removed so that the meeting could continue, but
that McMahon was “still at the microphone” and “[(h]e
dumped some trash.” A police sergeant testified that
Hudson wanted McMahon arrested. The sergeant advised
Hudson that the police did not have the authority to arrest
McMahon because the accusation did not involve a felony
and no misdemeanor has been committed in police pres-
ence. Hudson then made a citizen’s arrest of McMahon for
willfully disturbing a public meeting. McMahon continued
talking to the audience as officers approached him, placed
him in handcuffs and took him to the police station. The
board meeting resumed. McMahon was issued a citation
and released. No criminal charges were filed against him.
McMahon sued the District, its board members and
superintendent Hudson, alleging various causes of action.
At trial, as a result of pretrial rulings, the only remaining
cause of action accused the District, Hudson and McManus
of false arrest and false imprisonment.’ A nonsuit was
* “(Wie point out that ‘false arrest’ and ‘false imprisonment’ are not
separate torts. False arrest is but one way of committing a false
imprisonment, and they are distinguishable only in terminology.
(Continued on following page)
‘ re iit
App. 5
granted as to McManus. The jury was unable to [] reach a
verdict on the District and Hudson. After a second trial,
the jury returned a special verdict in favor of the remain-
ing defendants.
I. The Court Properly Denied the Motion for a
Directed Verdict
McMahon contends the trial court erred in denying
his motion for a directed verdict. His claim is without
merit.
“A directed verdict may be granted only when, disre-
garding conflicting evidence, giving the evidence of the
party against whom the motion is directed all the value to
which it is legally entitled, and indulging every legitimate
inference from such evidence in favor of that party, the
court nonetheless determines there is no evidence of
sufficient substantiality to support the claim or defense of
the party opposing the motion, or a verdict in favor of that
party.” (Howard v. Owens Corning (1999) 72 Cal.App.4th
621, 629-630.)
If a party resisting a motion for a directed verdict
produces sufficient evidence to support a jury verdict in its
favor, the motion must be denied. (Howard v. Owens
Corning, supra, 72 Cal.App.4th at p. 630.) McMahon’s
challenge essentially contends that insufficient evidence
supports the jury verdict against him. “Only if there was
no substantial evidence in support of the verdict could it
[Citations.]” (Collins v. City and County of San Francisco (1975) 50
Cal.App.3d 671, 673.)
ssp ca
aii
App. 6
have been error for the trial court earlier to have denied
[the] motion for directed verdict.” (Ibid. )
In determining whether the judgment was supported
by substantial evidence, we consider all of the evidence in
the light most favorable to the prevailing party, giving it
the benefit of every reasonable inference, and resolving
conflicts in favor of the judgment. We do not reweigh the
evidence. “Our authority begins and ends with a determi-
nation as to whether, on the entire record, there is any
substantial evidence, contradicted or uncontradicted, in
support of the judgment.” (Howard v. Owens Corning,
supra, 72 Cal.App.4th at pp. 630-631.)
“A private person may make a ‘citizen’s arrest’ for a
public offense committed in his presence. (P.C. 837(1).)
However, the cooperation of police officers is necessary to
make the arrest effective. The citizen calls the police; they
- are unable to make an arrest because the offense was
previously committed outside their presence; but the
citizen may make the arrest and the officers will then take
the arrested person into custody.” (5 Witkin, Summary of
Cal. Law (9th ed. 1988) Torts, § 390, p. 473, italics omit-
ted.) The jury was instructed that respondents bore the
burden of proving that McMahon was lawfully arrested. It
found the burden had been met. Substantial evidence
supports the finding and therefore the court did not err in
denying McMahon’s motion for a directed verdict.
A. The Supreme Court’s Decision in In re Kay
McMahon was arrested for violating Penal Code
section 403, which provides in part: “Every person who,
without authority of law, willfully disturbs or breaks up
any assembly or meeting that is not unlawful in its
App. 7
character, ..., is guilty of a misdemeanor.” The California
Supreme Court undertook an extensive analysis of section
403 in In re Kay (1970) 1 Cal.3d 930 (Kay), interpreting
the provision to withstand a First Amendment challenge.
In Kay, over 6000 people attended a Fourth of July cele-
bration in a public park. A local congressman was invited
to speak during the formal program that preceded the
fireworks display. During the congressman’s speech, a
group of 25 to 250 persons rhythmically clapped and
shouted for 5 to 10 minutes, demonstrating disapproval of
the congressman’s position on a grape boycott. The con-
gressman, who had been using a microphone, was able to
finish his speech, pausing to assure the demonstrators
that they had a right to protest and encouraging them to
be grateful that they lived in a country that protected that
right. Neither the congressman nor the police asked the
protestors to stop or disperse. When the speech and the
program ended, the fireworks were shown. The demon-
stration did not affect the program. Charges were filed
against the protestors two weeks later. (Id. at pp. 935-
936.)
The Kay court noted that, with a single, irrelevant
exception, section 403 had not been interpreted since its
passage almost a century earlier. It then considered the
constitutionally permissible bounds of such a statute. The
court pointed out that it was guided by principles affecting
First Amendment rights and that the conduct involved in
Kay, including the clapping, constituted “speech” for the
purposes of its analysis. (Kay, supra, 1 Cal.3d at p. 938.)
Justice Tobriner, writing for the majority, observed:
“The Constitution does not require that any person,
however lofty his motives, be permitted to obstruct the
convention or continuation of a meeting without regard to
App. 8
the implicit customs and usage or explicit rules governing
its conduct.” (Kay, supra, 1 Cal.3d at p. 938.) The rights of
some to peaceably assemble and petition for redress of
grievances would be undermined if others could prevent or
disrupt such activities by disregarding the customs and
rules which apply to meetings at which those rights are
exercised. On the other -hand, other First Amendment
rights are at stake when views are publicly expressed. The
Kay court sought to strike the constitutionally required
balance.
“Audience activities, such as heckling, interrupting,
harsh questioning, and booing, even though they may be
impolite and discourteous, can nonetheless advance the
goals of the First Amendment. For many citizens such
participation in public meetings, whether supportive or
critical of the speaker, may constitute the only manner in
which they can express their views to a large number of
people; the Constitution does not require that the effective
expression of ideas be restricted to rigid and predeter-
mined patterns.” (Kay, supra, 1 Cal.3d at p. 939.)
However, “the Constitution indubitably affords some
measure of protection to the free expression of all those
present at a meeting,” including speakers, officials and the
audience. (Kay, supra, 1 Cal.3d at p. 941 italics added.)
Because of this broad-ranging protection, “section 403’s
prohibition of ‘disturbances’ potentially may collide with
safeguarded First Amendment interests. Nonetheless, the
state retains a legitimate concern in ensuring that some
individuals’ unruly assertion of their rights of free expres-
sion does not imperil other citizens’ rights of free associa-
tion and discussion. [Citation.] Freedom of everyone to
talk at once can destroy the right of anyone effectively to
App. 9
talk at all. Free expression can expire as tragically in the
tumult of license as in the silence of censorship.” (Ibid.)
The Kay majority concluded that section 403, as
written, was constitutionally infirm because it applied to
“every person who ... willfully disturbs or breaks up any
assembly or meeting.... ” If invoked without restriction,
the statute could criminalize conduct that was “nothing
more than an expression of free speech protected by the
Constitution.” (Kay, supra, 1 Cal.3d at p. 941.) The court
then interpreted section 403 in a way to serve its purpose
without constitutional impingement: “Accordingly, we now
explicitly recognize that, in light of the purposes of the
provision and the competing First Amendment interests at
stake, section 403 authorizes the imposition of criminal
sanctions only when the defendant’s activity itself — and
not the content of the activity’s expression — substantially
impairs the effective conduct of a meeting. [{] To effectu-
ate section 403 within constitutional limits we interpret it
to require the following showing to establish its transgres-
sion: that the defendant substantially impaired the con-
duct of the meeting by intentionally committing acts in
violation of implicit customs or usages or of explicit rules
for governance of the meeting, of which he knew, or as a
reasonable man should have known.” (Id. at pp. 942-943.)
The Kay court made clear that, in applying its ruling,
the nature of the meeting in question “plays a major role.”
“The customs and usages at political conventions may
countenance prolonged, raucous, boisterous demonstra-
tions as an accepted element of the meeting process;
similar behavior would violate the customs and usages of a
church service. Audience participation may be enthusiasti-
cally welcomed at a bonfire football rally or an athletic
contest, but considered taboo at a solemn ceremony of a
App. 10
fraternal order. ... Thus, rather than enacting monolithic
standards, section 403 draws its content from the implicit
customs and usages or explicit rules germane to a given
meeting.” (Kay, supra, 1 Cal.3d at p. 943.)
Kay involved the criminal prosecution of defendants
who expressed views contrary to those voiced by an elected
official at a large outdoor event. Since Kay’s publication,
no appellate opinion has considered a section 403 viola-
tion. Here we must apply Kay’s rationale to the prosecu-
tion of a civil lawsuit for false arrest in which McMahon
claims he was improperly arrested by public officials
whom he was addressing at a small meeting conducted in
a schoolroom.
B. Trial Court’s Application of Kay
The jury in this case was instructed in language
specifically based on the authority of Kay. It was told: “A
fundamental right under the First Amendment of our
United States Constitution is freedom of speech. Freedom
of speech includes expression which is not only spoken but
may include acts or conduct. When conduct is intended to
express a message and the likelihood is great that the
message would be understood by those who view it, it is
entitled to the same protection under the Constitution as
the spoken word. [{] In determining whether Mr. McMa-
hon’s acts and conduct violated the law to warrant his
arrest as a violation of Penal Code section 403, a distinc-
tion has to be drawn between expression which may
include acts and an act independent of expression. An act
may coexist with expression as well as being a part of the
expression which is protected by the First Amendment. [{]
Consequently, Penal Code section 403 authorizes an arrest
App. 11
by citizens or police officers only when a person’s (for
purposes of this trial Mr. McMahon’s) activity itself — and
not the content of the activity’s expression — substantially
impairs the effective conduct of the meeting. [{] For a
violation of Penal Code section 403, disturbing a lawful
assembly, the following elements must exist: [{] 1. Mr.
McMahon must have substantially impaired the conduct of
the meeting; [{] 2. by intentionally committing acts; []] 3.
in violation of implicit customs or usages for the govern-
ance of the meeting of which he knew or, as a reasonable
person should have known. [{] If you find by a preponder-
ance of the evidence that such facts are true, you must
find that there was proper cause to arrest Mr. McMahon.
({] If you find that such facts are not true, you must find
that there was not proper cause to arrest Mr. McMahon.
That is, if you find that Mr. McMahon was arrested
because of his expression (speech) — which can include
activities — and not because of his conduct alone, then he
would not have been properly arrested. [{] If you find that
the standard of conduct for the Board of Education meet-
ing lies in doubt, in determining whether Mr. McMahon
violated implicit customs or usages for the governance of
the meeting, a warning and request that Mr. McMahon
curtail his conduct should proceed [sic ] an arrest. You may
consider whether or not a warning or request was directed
to Mr. McMahon to cease his activities, and if none,
whether there was an opportunity for such a request to be
directed to him. If you find that no warning was given and
there was an opportunity to give such a request than [sic ]
the arrest is unlawful. [{] In the crime of disturbing a
lawful assembly there must exist a union or joint opera-
tion of act or conduct and general criminal intent. General
criminal intent does not require an intent to violate the
law. When a person intentionally does that which the law
App. 12
declares to be a crime he is acting with general criminal
intent, even though he may not know that his act or
conduct is unlawful.”
The jury was thus told of the necessity to distinguish
between disruptive acts and the protected content of an
act’s expression. It was informed of the elements required
for a violation of section 403 in conformity with Kay.
C. Violation of the Customs of the Meeting
1. The Act of Dumping Trash
McMahon claims that no custom or usage, of which he
knew or should have known, prevented him from dumping
gallons of garbage onto the schoolroom floor. Sufficient
evidence supports the jury’s finding to the contrary.
The record indicates that McMahon freely discussed a
range of subjects at the school board meetings, including
trash in school neighborhoods. Previously he had illus-
trated his point by holding up a bag of discarded items he
had collected. None of this conduct was unacceptable
within the context of meetings held in Cornell Elementary
School’s multipurpose room. The jury concluded, however,
that dumping trash on the tarp and floor was another
matter. The room served as the school’s cafeteria and
student assembly room, and was used after school for
childcare. When McMahon started emptying the bag,
Principal Boyan expressly cautioned him: “Kids are in this
room tomorrow. ... ” The jury reasonably concluded that
dumping trash is not an accepted element of meetings
regularly held in a room where children eat and congre-
gate, and thus violated the customs and usages of those
meetings. Although McMahon told the audience that the
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App. 13
bags contained drug paraphernalia and bottles of alcohol,
he now describes the contents as innocuous. His assertion
is irrelevant. McMe on dumped garbage. It was well
within the jury’s province to conclude that McMahc.1’s
conduct exceeded the bounds of constitutionally protected
speech and crossed the line into the “tumult of license.”
(Kay, supra, 1 Cal.3d at p. 941.)
2. Clear and Present Danger
McMahon contends that if the board considered that
the material he dumped was dangerous or a threat to
public safety, respondents had the burden of demonstrat-
ing that dumping the trash represented a “clear and
present danger.” He argues that the First Amendment
does not permit the arrest of a speaker for a mere possible
danger or for a danger that may occur at some future time.
In support of this proposition, McMahon relies on In re
Bushman (1970) 1 Cal.3d 767, In re Brown (1978) 9 Cal.3d
612 and Jefferson v. Superior Court ( 1975) 51 Cal.App.3d
721 all cases that considered violations of Penal Code
section 415. As noted by the Bushman court, the portion of
section 415 applicable in those cases “makes punishable
only wilful and malicious conduct that is violent and
endangers public safety and order or that creates a clear
and present danger that others will engage in violence of
that nature.” (In re Bushman, supra, 1 Cal.3d at p. 773.)
McMahon was arrested for a violation of Penal Code
section 403, not 415. Nothing in section 408 or in the
Supreme Court’s opinion in Kay imposes a clear and
present danger requirement. The danger and safety issues
involved with dumping trash on the floor were considered
only in the context of whether such activity violated the
App. 14
customs and usages of a meeting held in schoolroom where
young children are cared for.
3. Need for a Warning
McMahon also argues that the board should have
warned him or asked him to stop before having him
arrested. McMahon relies on the following language from
Kay: “Generally, if disturbances are occasioned by nonvio-
lent exercise of free expression, section 403 will require
that defendants be shown to have engaged in such conduct
with knowledge, or under circumstances in which they
should have known, that they were violating an applicable
custom, usage, or rule of the meeting. In instances in
which the appropriate standard of conduct lies in doubt, a
warning and a request that defenants curtail their
conduct, either by officials or law enforcement agents,
should precede arrest or citation. If section 403 were not so
interpreted, individuals would be forced to speculate as to
what conduct might entail criminal sanctions and would
‘necessarily ... “steer far wider of the unlawful zone.”’”
(Kay, supra, 1 Cal.3d at p. 945, citations and footnotes
omitted.)
At the outset we note that Kay does not require a
warning in every circumstance that portends a section 403
violation. The Kay court states that in instances where the
“appropriate standard of conduct lies in doubt,” a warning
and request to curtail conduct should precede arrest or
citation. The jury could reasonably have determined that
it is self-evident that dumping garbage in a room where
children eat lunch violates the custom or usage of the
board meetings, obviating the need for a warning or
request to stop. Nevertheless, even if admonishments were
App. 15
required in these circumstances, there is sufficient evi-
dence in the record indicating that McMahon was advised
that his conduct was improper. Although McMahon claims
he did not realize that Boyan was the principal of Cornell
School, Boyan’s comment nevertheless should have re-
minded McMahon of the obvious: children use the multi-
purpose room. Moments later, McMahon heard board
member McManus state, “This is an inappropriate activity
to do in a school room.” McMahon also heard McManus
tell Hudson to call the police. Still, McMahon made no
effort to stop and pick up the trash. Instead he urged
Hudson to call the police. McMahon continued to dump
garbage and speak to the audience after the board left the
room. Even after the police arrived, McMahon did not pick
up the refuse.
McMahon contends that McManus’s statement was
insufficient under Kay to serve as a warning and request
to desist. He contends that a board member should have
stated expressly, “Mr. McMahon, you are out of order.
Please pick up your trash and conclude your remarks.”
Kay, however, does not mandate the use of any particular
talismanic phrase. Rather, sufficient notification should be
given so that individuals are not “forced to speculate as to
what conduct might entail criminal sanctions.” (Kay,
supra, 1 Cal.3d at p. 945.) Board member McManus’s
direct identification of the conduct as inappropriate and
his request to have the police called adequately gave
McMahon the notice contemplated in Kay. Instead,
McMahon encouraged Hudson to call the police. On this
record, McMahon’s assertion that he was given neither
warning nor time to curtail his conduct is unfounded.
App. 16
D. Substantial Impairment of the Meeting
McMahon also argues that his conduct did not “sub-
stantially impair the conduct of the meeting.” (Kay, supra,
1 Cal.3d at p. 943.) McMahon argues that the board could
have continued the meeting, but simply chose not to do so.
“Whether a given instance of misconduct substantially
impairs the effective conduct of a meeting depends upon
the actual impact of that misconduct on the course of the
meeting; the question cannot be resolved merely by asking
persons present at the meeting whether they were ‘dis-
turbed.’ [Citation.]” (Id. at p. 944.) The Kay court, consid-
ering the Fourth of July celebration at issue before it,
concluded that “[s]ince the nature of that meeting contem-
plated acceptance of the nonviolent expression of alterna-
tive viewpoints, the petitioners’ protest did not impair the
conduct of the meeting but instead constituted a legiti-
mate element of it.” (Ibid. )
Here, the jury, evaluating the impact of McMahon’s
conduct on the course of the meeting, concluded that
McMahon did more than merely disturb the sensibilities of
the board members. McMahon initially addressed the
board about trash, eliciting no objections from the board
about the content of that speech. He then left the micro-
phone, returned with his garbage bags and spread a tarp
on the floor. At that point, board president Riffer alerted
him that the board needed to move onto other matters on
the agenda. Nevertheless McMahon proceeded to dump
the bags’ contents.
The jury legitimately concluded that the board, forced
to adhere to McMahon’s agenda, was unable to proceed
with its own. Had McMahon been permitted to continue
dumping his trash in the middle of the meeting, one of two
|
App. 17
outcomes would necessarily have transpired. Either the
meeting would have been further delayed at some point
while McMahon picked up the garbage or other speakers
would have had to stand near the trash in order to address
the board and audience members would have been forced
to peer over a mound of garbage in order to watch a public
body perform its duty. The preperly instructed jury de-
clined to provide “so excessive a use of the First Amend-
ment right to protest that the right would be devoured in
its own excesses.” (Kay, supra, 1 Cal.3d at p. 946.) Sub-
stantial evidence supports the jury’s finding that McMa-
hon’s conduct was not a legitimate element of the meeting,
but rather a significant impairment of it. (Id. at p. 944.)
II. The Court Did Not Err in Refusing McMahon’s
Requested Instruction
“A party is entitled upon request to correct, nonargu-
mentative instructions on every theory of the case ad-
vanced by him which is supported by substantial
evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th
548, 572.) Although the trial court fashioned a jury in-
struction based on Kay, set out in section IB above,
McMahon proposed an alternate instruction. He argues
that the court erred in failing to incorporate certain
portions of his proposed language. His claim is without
merit.
McMahon argues that the trial court should have
included this sentence from his proposed instruction: “A
person may not be arrested for offensive speech or expres-
sive conduct unless there is both a clear and present
danger of violence or threat to public safety.” McMahon
argues that the court’s instruction did not inform the jury
App. 18
“that when an arrest is sought to be justified on grounds
that conduct which involves speech creates a danger to
public safety, that the justification must include proof not
just of a danger, but of a clear and present, i.e., immediate,
danger.” As we have discussed, McMahon was not arrested
for disturbing the peace in violation of Penal Code section
415. McMahon’s proposed language is not applicable to
section 403 and the trial court properly rejected it.*
McMahon also claims that the jury should have been
told: “Under the First Amendment it is lawful for a person
to express himself through speech or expressive conduct
even though that speech or conduct is not in accord with
propriety, modesty, good taste or good manners. Likewise,
a person may exercise his right of free speech even ...
when his audience finds his speech or conduct offensive.”
He also proposed an additional instruction on this topic
which stated in part: “The subject matter of the communi-
cation protected by the Constitution is not limited by what
the audience may prefer to hear. The Constitution may
best serve its high purpose when it induces a condition of
* In closing argument, respondents’ counsel argued: “First Amend-
ment of the U.S. Constitution does not allow you to call or yell out fire
in a theater. It doesn’t allow you to light a fire in a cafeteria room [or]
public school where young kids are, and I don’t think the First Amend-
ment aliows you to dump trash that you have previously described as
drug paraphernalia in the cafeteria when you’ve been told there’s going
to be kids in there the next day, young kids.” McMahon correctly
observes that counsel’s reference to yelling fire in a theater is taken
from Schenck v. United States (1919) 249 U.S. 47, in which Justice
Holmes first announced the “clear and present danger test.” Counsel’s
remark did not inject the “clear and present danger” requirement into
the jury’ consideration, however. Considered in context, counsel’s
remark was intended to depict McMahon’s actions as violating the
customs of the board meeting and disrupting the proceedings.
- VS a :
App. 19
unrest, creates dissatisfaction with conditions as they are,
or even stirs people to anger.”
The court’s instruction was a correct statement of the
law and adequately addressed the issues to be resolved by
the jury. The fact that McMahon’s conduct may have been
offensive or beyond good taste or “inducing a condition of
unrest” is not the inquiry under section Penal Code 403.
The Kay court recognized the potential conflict between
section 403’s prohibition of “disturbances” and First
Amendment interests. The court noted, “Nonetheless, the
state retains a legitimate concern in ensuring that some
individuals’ unruly assertion of their rights of free expres-
sion does not imperil other citizens’ rights of free associe-
tion and discussion.” (Kay, supra, i Cal.3d at p. 941.) The
trial court’s instruction correctly advised the jury to
consider whether McMahon's conduct, apart from his
message, violated the customs of the meeting and resulted
in the “substantial impairment of the conduct of that
meeting.” (Id. at p. 945.) The jury was specifically told that
if McMahon was arrested because of the content of his
speech, the arrest was improper. This charge adequately
covered the point made in the non-argumentative part of
McMahon’s proposed instruction.
Finally, McMahon contends that the trial court erred
in not incorporating the following part of his proposed
instruction: “In instances in which the appropriate stan-
dard of conduct lies in doubt, the chairman or other
officials conducting the meeting must give a warning and
a request that the speaker curtail his conduct.” The trial
court’s instruction states in part: “You may consider
whether or not a warning or request was given to Mr.
McMahon.” McMahon argues that the trial court should
have instructed the jury that the warning or request must
App. 20
come from meeting officials. He relies on the statement in
Kay that “a warning and a request that defendants curtail
their conduct, either by officials or law enforcement
agents, should precede arrest or citation.” (Kay, supra, 1
Cal.3d at p. 945.) McMahon claims the omission of his
proposed language allowed jurors to find that the remarks
of Principal Boyan, seated in the audience,‘ constituted a
sufficient warning.
We need not become enmeshed in a debate over
whether Principal Boyan was an “official” for purposes of
the Kay standard. The obvious purpose of a warning is to
clarify the appropriate standard of conduct, should that
standard be in doubt. Even if we assume, solely for the
purposes of argument, that a reasonable person might
entertain an honest doubt about whether it violates
implicit customs or usages of such a meeting to dump
garbage on the floor of a school room, there was more than
sufficient evidence to prove McMahon had such notice
based on the statement of board member McManus.
III. McMahon’s Federal Civil Rights Claim Was Time
Barred
On October 30, 1996, McMahon filed a claim against
the District under the California Government Claims Act
(Gov. Code, §910 et seq.) (Claims Act), alleging false
arrest. The claim was denied on February 10, 1997.
McMahon filed his original complaint on June 13, 1997,
* McMahon claims he did not know that Boyan was the:principal of
Cornell Elementary School and considered him simply another member
of the audience.
App. 21
and a first amended complaint on March 4, 1999. On July
13, 2000, McMahon filed a second amended complaint
alleging illegal seizure in violation of the Fourth Amend-
ment as a federal civil rights claim. (42 U.S.C. § 1983.)
The trial court sustained respondents’ demurrer on the
ground that the federal claim was barred by the statute of
limitations.
McMahon argues, first, that the trial court erred
because the limitations period on the federal claim was
tolled while he pursued remedies under the Claims Act.
We reject his contention.
The applicable statute of limitations for civil rights
actions brought in California under 42 United States Code
section 1983 (section 1983) is the one-year statute of
limitations for personal injury actions, as provided in Code
of Civil Procedure section 340, subdivision (3). (West
Shield Investigations & Security Consultants v. Superior
Court (2000) 82 Cal.App.4th 935, 953.) “‘Although state
law determines the length of the limitations period,
federal law determines when a civil rights claim accrues.’
[Citation omitted.] Under federal law, ‘a claim accrues
when the plaintiff knows or has reason to know of the
injury which is the basis of the action.’” (Knox v. Davis
(9th Cir. 2001) 260 F.3d 1009, 1013.) McMahon’s claim
accrued on April 30, 1996, the date of his arrest. His
second amended complaint, alleging the federal claim, was
filed more than four years later.
The Claims Act provides that notice of a claim must be
given to a public agency before an action can be brought
against it. (Gov. Code, § 945.4.) A civil action must be filed
within six months after the agency has rejected the claim.
(Gov. Code, § 945.6.) On the other hand, a plaintiff does
App. 22
not have to file under the Claims Act before initiating a
section 1983 action. (Williams v. Horvath (1976) 16 Cal.3d
834, 842.) There are no procedural impediments to filing a
section 1983 action within the one-year period after the
cause of action has accrued.
In Javor v. Taggart (2002) 98 Cal.App.4th 795, the
court recently held that the sectic® 1983 limitations period
is not tolled by the prior filing of a state law claim. We
agree with that holding. The Javor court reached its
conclusion after a review of federal cases considering the
issue. In Ervin v. Los Angeles County (9th Cir. 1988) 848
F.2d 1018, 1019-1020, the federal appeals court observed
that while claims brought under the Claims Act and
section 1983 may be factually related, they nevertheless
constitute legally distinct wrongs. As noted in Stone v. City
and County of San Francisco (N.D.Cal 1990) 735 F.Supp.
340, 345: “[I]t is clear that the remedies and procedures in
the [Government] Claims Act and the Civil Rights Act are
separate and independent.... The court concludes that
plaintiff’s [state law] tort claim is not sufficient to toll the
statute of limitations on his section 1983 action. Accord-
ingly, as a matter of law, plaintiff’s section 1983 claim is
barred by the statute of limitations.” Likewise, McMahon’s
federal claim was not tolled while he pursued remedies
under the Claims Act. Because he failed to assert his cause
of action under section 1983 within one year of the date of
his arrest, the claim is time barred.
Second, McMahon argues that his section 1983 cause
of action was tolled pursuant to the general principle of
equitable tolling. Under this doctrine, the limitations
period is tolled when “the record shows (1) timely notice to
the defendant in filing the first claim; (2) lack of prejudice
to defendant in gathering evidence to defend against the
App. 23
second claim; and, (3) good faith and reasonable conduct
by the plaintiff in filing the second claim.’” (Daviton v.
Columbia/HCA Healthcare Corp. (9th Cir. 2001) 241 F3d
1131, 11387-1138.) We need not consider the first two
prongs because McMahon did not satisfy the third. After
conceding that the facts supporting his state tort claim
and federal claim are virtually identical, McMahon merely
asserts that his conduct in filing the federal claim was
reasonable and in good faith. Even if McMahon mistak-
enly believed satisfaction of the Claims Act was required
before filing the section 1983 action, he waited more than
three and a half years after denial of the Claims Act
application before filing. In Ervin v. Los Angeles County,
supra, the appellant, who had previously filed a tort claim
action in state court, “had not only conducted an investiga-
tion of her own into the facts of this case, but had been in
possession of a copy of the results of the appellee’s own
investigation file as well for perhaps as much as a year
and a half prior to filing the instant action in federal
district court.” (848 F.2d at p. 1020.) The federal appeals
court rejected her equitable tolling argument, stating:
“While it is true, ... , that the California courts have not
clearly defined ‘good faith’ for purposes of determining the
applicability vel non of equitable tolling, we conclude that,
under the facts as presented here, ‘good faith’ is to be used
in its plain and ordinary sense, and that the appellant’s
unwarranted delay in filing her federal civi! rights claim
was neither reasonable nor in good faith.” (Jbid.) Ervin’s
reasoning is even more compelling here. McMahon waited
a longer period, without explanation, to file his second
amended complaint.
App. 24
The Court Did Not Err
In Granting Summary Judgment
McMahon’s fourth cause of action alleged a violation
of constitutional rights under Civil Code sections 52 and
52.1. His fifth cause of action sought a judicial declaration
that “Defendants’ action in adjourning the Board meeting
when plaintiff was ... criticizing their policies relating to
trash and public safety, and going into closed session and
arranging for the arrest of plaintiff, effecting the arrest of
plaintiff, and then resuming the Board Meeting after
plaintiff’s criticism could not longer be heard, was a
violation of the Brown Act. [Gov. Code, S 54950.5 et seq.]”
McMahon points out that these causes of actions were
identical as to all original defendants and asks us to
consider the arguments he made in his earlier appeal as to
those defendants dismissed by summary judgment.
(McMahon v. Riffer, et al. (May 22, 2002) A094883 [non-
pub. opn.]). We do so, and incorporate by reference our
decision in that matter.
Regarding McMahon’s fourth cause of action, we
concluded that the response to McMahon’s conduct at the
meeting did not violate the Constitution, and thus is
beyond the scope of the Civil Code sections at issue. We
noted that Civil Code sections 52 and 52.1, along with
other statutes, were enacted in a coordinated effort to
combat hate crimes. As we concluded, “Plaintiff’s arrest
and subsequent brief confinement was not a hate crime;
indeed it was no crime at all.” (McMahon v. Alan Riffer, et.
al., supra, A094883 at p. 6.) “Insofar as plaintiff equates
the adjournment of the public meeting with infringement
upon his First Amendment right of free speech, the ines-
capable fact is that plaintiff’s own conduct caused the
adjournment of the meeting.” (Jbid.) It was not the
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App. 25
expression of his views that caused the adjournment, but
his dumping of trash in a school cafeteria.
As to McMahon’s fifth cause of action, we concluded
the trial court did not abuse its discretion in finding that
declaratory relief would be inappropriate. The trial court’s
conclusion was consistent with its determination that such
relief was superfluous to the resolution of the underlying
merits already reached. As we stated in our earlier opin-
ion: “The chance that the relevant conduct would recur can
properly be regarded as remote, thus the grant of relief
was unnecessary in the context of litigation the court was
simultaneously ending.” (McMahon v. Alan Riffer, et. al.,
supra, A094883 at p. 7.)
Disposition
The judgment is affirmed.
Corrigan, Acting PJ.
We concur:
Parrilli, J.
Pollak, J.
Trial court: Alameda County Superior Court
Trial judge: Honorable Kenneth Burr
Walter K. Pyle for Appellant and Plaintiff
Imai, Tadlock, Keeney & Cordery, LLP, T.G. Tadlock, for
Defendants and Respondents.
Ea
App. 26
Court of Appeal, First Appellate District,
Division Three — No. A093980
S113444
IN THE SUPREME COURT OF CALIFORNIA
En Banc
(Filed Mar. 19, 2003)
DAVID MCMAHON, Plaintiff and Appellant,
v.
ALBANY UNIFIED SCHOOL DISTRICT et al.,
Defendants and Respondents.
Petition for review DENIED.
GEORGE
Chief Justice
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.