*1 netics, the farmers and distribu- and for VILLEGAS; Poelker; George Bob being on RRA alfalfa planned
tors who Orta; Derosiers, Marcelo Don I would be more comfortable available. Plaintiffs-Appellants, injunction had the dis- a nationwide with evidentiary hearing to trict court held an testimony, to cross live listened consider GARLIC FESTIVAL ASSOCI GILROY examination, credibility any and resolved Officer; ATION; Bergman, D. But no the witnesses. issues between Gilroy, Defendants-Appellees. hearing occurred and I therefore such in the need for a na- have no confidence No. 05-15725. injunction pending completion of tionwide Appeals, United States Court the EIS. Ninth Circuit. court’s refusal By affirming district Argued and Submitted Dec. 2007. evidentiary hearing, an the ma- to conduct exception to the jority has created a third Sept. Filed evidentiary hearing requirement. Under decision, a now can fore- this district court
go conducting evidentiary hearing sim- (1) may
ply injunction because dissolve (2) issues, to be point some with the hearing, overlap
raised at agency
issues the must consider. Instead giving agency’s exper- deference to the McNair,
tise, see The Lands Council v. 981, 988, 992-93, F.3d 2008 WL (9th Cir.2008) (en
2640001, *4, banc), *8-9 majority gives deference to the district rejection of the despite
court its wholesale
agency’s proposal and its failure to hold an
evidentiary hearing. many There aren’t en-
vironmental cases don’t fit into the
majority’s newly-created exception. This mistake, “sig-
is a as it would eliminate a Charlton, procedural step[,]”
nificant any justification.
F.2d at without real
I would instead remand so that district evidentiary hearing
court could conduct an scope permanent
on the merits and
injunction. *2 Velez, Clapp Moroney Bellagamba
Martin Vucinich, CA, City, Daly and Valerie Moroney Higgins, Clapp Bellagamba S. *3 Vucinich, Bruno, CA, and San were on the briefs.
Appeal from the United States District for the Northern District of Califor- Court nia; Ware, Judge, District Presid- James ing. D.C. No. CV-01-20720-JW. KOZINSKI, ALEX Before: Chief O’SCANNLAIN, Judge, F. DIARMUID RYMER, R. PAMELA ANN SIDNEY THOMAS, McKEOWN, M. MARGARET WARDLAW, KIM McLANE RAYMOND FISHER, GOULD, C. RONALD M. PAEZ, A. M. RICHARD CONSUELO CALLAHAN, SMITH, and N. RANDY Judges. Circuit O’SCANNLAIN; by Opinion Judge THOMAS; by Judge Dissent Dissent Judge GOULD.
O’SCANNLAIN, Judge: Circuit decide guests We must whether at the Gilroy Garlic Festival can hold Gilroy in Gilroy California and the Garlic Festival Association rights liable a civil they action when are from escorted by City police event officer violating for the Festival’s dress code. I Hammock,
Randolph M. Law Offices of Lester, Park, CA, Canoga Richard M. ar- George Villegas remaining plaintiffs gued plaintiffs-appel- the cause for the (hereinafter Hatters”), “Top all of whom lants; Lichtenstein, Allen General Counsel are Motorcy- members of the Rowland, ACLU, Attorney, and Lee Staff Club, brought against cle suit NV, Vegas, Las were on the briefs. Gilroy Gilroy and the Garlic Festival Asso- Strombotne, (“GGFA”) Mark § Strombotne Law ciation under U.S.C. Firm, Jose, CA, Gregory alleged rights San C. Simo- violations of their civil nian, Clapp Moroney Bellagamba arising out of occurring Vu- events the Gil- cinich, CA, Daly City, argued roy July the cause for Garlic Festival on 2000. On Lacy, Bronwen defendants-appellees; wearing occasion vests that Firm, Jose, CA, Strombotne Law image wings San G. included an of a skull with days for a few in the year, Hat- Once “Top the words topa hat with summer, GGFA, non-profit cor- “Hol- hat and the top word ters” above and runs the poration, sponsors un- to an Pursuant written below.1 lister” food, The Festival offers Garlic Festival. prohibited of the GGFA written contests, music, family ac- recreation colors or other wearing “gang guests emphasis, garlic an tivities—with motorcy- insignia, including demonstrative —in environment. Such family-friendly attrac- chair of insignia,” the Festival’s cle club include the Great Garlic Cook-Off officer, tions request- off-duty police security, Alley, cooking contest and Gourmet where officer to remove *4 on-duty police ed scampi, garlic calarmari and garlic-laced ensued. litigation and this Top Hatters sandwiches, fry, garlic sausage stir chicken summary granted court The district Magicians, are served. garlic bread City of in favor of both the judgment jugglers offer troupes, puppets dance GGFA, wearing ruling that Gilroy and the toward children in a geared entertainment conduct expressive neither such was vests special area. pro within nor association expressive Amendment and of the First tection in at issue was held Christ- Festival was a state any in event the GGFA not Park, public park City Hill a in the mas meaning of section 1983. actor within Gilroy, July July 28 to 2000. Gilroy, F.Supp.2d v. Villegas venue, this GGFA entered order secure (N.D.Cal. 1207, 1208-09, 1217-19 facility contract with the into reservation 2005). agreement, of this City. Under the terms required was to “understand GGFA a three- appeal, Hatters’ Top On the may and traffic agree control affirmed, the mo- holding that judge panel Gilroy Depart- Police required be ex- subject was torcycle insignia club ment.” analysis but that there conduct pressive violation; it First Amendment was no security and has a chair of GGFA itself See state action issue. failed reach the security, are chair of who an assistant Gilroy, 484 F.3d Villegas City volunteers, usually one of whom is unpaid (9th Cir.), withdrawn, F.3d 974 City of officer with the a law enforcement Cir.2007). local Department or another Gilroy Police At the conclu- agency. law enforcement Thereafter, majority of circuit Festival, Gilroy sion of the that this judges in active service ordered submits a bill Department typically Police Rule pursuant case be heard en banc provid- expenses incurred to GGFA for 35(a) Appellate Federal Rules of law officers to staff ing its enforcement Villegas, 503 F.3d at Procedure. Festival.
II had an informal dress code GGFA however, point Top as the Hatters place; Hatters’ Top dealing Before with incident, out, was time of the there contentions, at the detailed more recital existence, nor was policy in support no written facts offered uncontroverted al- According to the posted. one there summary judgment appropriate. leather, and are adorned or black Garlic blue denim Top Hatters attended the 1. The pins that patches Poelker's indicate to celebrate member Bob with various Festival Motorcy- Top birthday sporting their membership in the Hatters. of either These vests are made cle Club vests. code, there, clothing they Sergeant arrived Kludt leged persons wearing dress Once policy allowed GGFA’s dress code gang insignia explained colors or with they “I if only they at if re- them: told them that refused to to remain the Festival refusing [gang] enjoy remove their colors and clothing. moved such Individuals festival that we will ask them to leave and clothing gang with colors to remove money, then we will refund their their to remain at insignia permitted were not entry fee into the festival.” The Hat- policy adopted the Festival. Such ters, however, in gang-related to an increase response years prior the Festival violence right, they felt that this was not had negatively impacted attendance. which had rights their to wear their vests where applied was not to the area The dress code right. to and this was not wanted the Festival. outside Well, [Sergeant And I told them: Kludt] I I’m policy enforcing have this Hatters entered the Festival As you and I’m if asking leave vests, off-duty Gilroy Police sporting their *5 to, know, you’re choosing you not come Kludt, chair Sergeant Donald GGFA’s of your into the festival without colors. clothes, security, plain spotted dressed them, Gilroy they contacted Police Officer left. I So And then walked them, that Bergman, requested Brenda she around with went the ticket gate. Top people escort the Hatters back to the booth ordered those to re- Bergman was armed and uni- people money. Officer fund these their assigned security. formed and to Festival Q: Bergman Where was Officer at the deposition, Sergeant In his Kludt ex- time? why Bergman plained he contacted Officer A: Standing next to me. for assistance: Top challenge appeal The Hatters Q: it fact that [Officer Was she grant summary judg- district court’s Bergman] was an armed uniformed offi- ment, asserting genuine there were cer, part your thought pro- was that fact issues material as to whether in wanting you? cess her to be with GGFA was state actor and whether the A: Yeah. engaged protected Hatters were armed; Q: you Because were not cor- expressive conduct expressive or associa- rect? tion. The Hatters also assert A: Correct. enforcing was liable for an unconstitu- uniformed; Q: you And were not cor- impliedly tional dress code which it had rect? adopted. A: Correct.
Q: you Bergman And wanted Officer Ill you give assist because she would some principles, Under familiar even a officer; authority police air of as a cor- can, private entity in certain circum rect? stances, subject liability be under sec [Objection] tion 1983. See Sutton v. Providence St. Q: Would that be a fair statement? Ctr., 826, Joseph Medical 835-36 A: Yes. (9th Cir.1999). Lugar In v. Edmondson Co., 922, 2744, Bergman duly approached Officer the Oil 457 U.S. 102 S.Ct. (1982), and requested fol- L.Ed.2d 482 Supreme Court low her gate they complied. to the created a two step analysis for determin- Gilroy -police provide action some its officers was state or not there ing whether festival; for to establish actor sufficient aby private The first tort. City Gilroy a constitutional a bill to liability for 3. The submits depriva the claimed the GGFA for the use of its offi- was “whether inquiry cers; from the exercise of resulted tion has having its source in state
right
privilege
security”
“chair of
4. The
2744.
Id. at
authority.”
officer with
typically
GGFA is
“whether, under the facts
was
Gilroy
Department;
The second
Police
case,
parties, may
...
[the]
of this
incident,
At
of the
this
5.
the time
characterized as ‘state
appropriately
be
ac
security” for the
“chair of
GGFA
”
Academy
In Brentwood
v. Ten
tors.’
Id.
Kludt, an active member of the
Sergeant
Associa
Secondary School Athletic
nessee
City Gilroy
Department;
Police
tion,
531 U.S.
S.Ct.
Sergeant
6.
Kludt utilized the com-
(2001),
the Court introduced
L.Ed.2d 807
post
Depart-
mand
Police
295-300, 121
test.
Id. at
multi-factored
grounds.
ment at the festival
inquiry
general
is a
one:
S.Ct.
persuaded.
are not
The Fourth Cir-
We
“[Sjtate
if, though
may be found
action
opinion
cuit’s
Auto
United
Workers
if,
nexus be
only
there is such
‘close
Festivals, Inc.,
The UAW also made the
actor
Nevertheless,
Gaston Festivals was
state
because
rely
given
had
control of its town
Davis,
893,
upon United States v.
festival,
center to the
which the court re-
(9th Cir.1973),
901-04
overruled on other
jected because it
that to find
determined
Aukai,
grounds by United
v.
States
action,
state
“[a]
actor must as-
(9th Cir.2007) (en banc).
F.3d
960-61
plenary
complete gov-
sume
control and
There,
private security
we held
when
power
property
ernmental
over the
in guards implemented
airport security
question.”
Id. at
(citing
Marsh v.
program ordered
the President of the
Alabama,
501, 506,
326 U.S.
66 S.Ct.
States,
engaging
United
in a
(1946);
NLRB,
Hudgens
Applying
principles
controlling
organ
similar
role
the actions of the
we
that
conclude
GGFA is not a state
ization
or
content of the festival.3
Cir.1997),
Additionally,
required
2.
we
grounds,
have
that for a
rev'd on other
526 U.S.
808,
1706,
private
(1999)
be
actor to
considered a state actor
119 S.Ct
district only if a municipal Monell under ability if “to exclude others agree, “moving was the force” behind custom of a during the course property public See v. violation. Galen constitutional limited, to be use” found permitted 652, Angeles, 477 F.3d County Los violation, “[ejvery picnic, constitutional Cir.2007). words, there must other meeting, rally, company outing, wedding, causal link between munici be “a direct would be public grounds held on fair alleged pal custom and consti policy or scrutiny.” Ville- subject to constitutional tutional Canton deprivation.” there at 1216. Because F.Supp.2d gas, 363 Harris, 385, 109 S.Ct. violation, 489 U.S. can be there is no constitutional (1989). Furthermore, it 103 L.Ed.2d liability. municipal no with our choosing finds fault conclusion to a dissent right attire of their to wear action, stating we "consider[] of state Hurley v. Irish-Am. privately run festival. See only function’ test." Dis- 'governmental Boston, Group Gay, Lesbian & Bisexual But, analysis clear from our at 959. it is sent 557, 579, 132 L.Ed.2d U.S. only whether a festival is we not consider (1995) orga- (recognizing right parade also state function but factors a traditional *8 participants de- to unwanted nizers exclude City control the has over as level of such the streets”). spite the its “use of festival, financial contribution the the level of Third, the dissent the additional factors that festival, City etc. See Brentwood of the to the action,” including the suggest “joint 295-99, lists to Academy, U.S. at Gilroy working apply of percentage of the citizens should (emphasizing that federal courts analysis festival, when deter- multi-factor generat- a flexible increased at the income the actor mining the action of whether ed, of "the assistance involvement purposes Four- really action for of the is state Division, Building & City’s Engineering Moreover, Amendment). the dissent’s teenth Division, Safety Department, Chemical Fire inconsistent, internally approach to be seems Division, Department,” and Police Control specific for noting “no formula that there is building a new apply equally could stating that we defining action” but then state plant, would make the but that not fertilizer mutually "four distinct'—but not apply must plant action. Dis- of such state construction 959; also see Dissent exclusive—tests.” Moreover, large increase in sent at 960. 295-99, 121 Academy, U.S. at Brentwood highlights the main afar that visitors ... (describing the "four distinct S.Ct. 924 maintaining City concern of the in this the dissent case tests” referred safety, in the in a public may not a share considered presence simply that be factors action). to state approach flexible of the Festival. success financial enough “merely is not [to] that hosts an alleg[e] annual Garlic Festival in late existing July. ... represents ... It is not a program Approxi- small affair. 120,000 policy mately participate visitors city for which the annual- responsible.” is ly, more than three million 389,109 revelers Id. at S.Ct. 1197. have attended the festival since its incep- Here, Top Hatters point tion. Disregarding the Bard’s admoni- the fact that permit requires that the tion,1 the festival features “food laced with City’s police provide portion of the Festi is, over garlic.” two tons of It according security, val’s City that the is reimbursed materials, promotional a “fun and providing for security, such and that Offi fragrant” experience, with participants Bergman cer complied request with the “going bananas garlic.” over The festival GGFA’s chair of to remove sponsored and managed by the non- individuals did comply who not with profit Gilroy Garlic Festival Association GGFA’s dress code.5 None of these facts (“Festival Association”). gives rise to the City conclusion that the Members Motorcycle Hatters had a custom of enforcing Club, Inc., non-profit charitable corpora- Furthermore, GGFA’s dress code. there tion, expelled from the 2000 Festival
is no evidence in the record of a custom or wearing bearing vests their corporate official policy of the enforce insignia thereby violating the Festival — code, GGFA’s dress nor is there evidence Association’s unwritten dress code. The participated officials in forming Top Hatters against filed suit the dress code. Gilroy (“City”), the officer enforcing the code, dress and the Festival Association.
V The district court concluded genuine issues material fact existed as to wheth- In light of the foregoing we do not reach City’s er the involvement constituted state question of whether wearing action, but held that the wearing of the clothing Hatters and insignia constituted vests not did constitute expressive conduct expressive conduct. of the violative First Amendment. The AFFIRMED. court granted district summary judgment as to the Festival Association on the basis THOMAS, Circuit Judge, with whom it was not a state actor. A three- WARDLAW, Circuit Judges FISHER, judge panel of this court affirmed the join, and PAEZ dissenting, and with whom grant summary judgment ground on the Circuit Judge joins GOULD in part: engaged had not Gilroy holds itself out as the “Garlic protectable expressive conduct. We Capital World,” and no one seriously granted rehearing en banc to reconsider disputes the claim. celebration its panel’s decision and ordered that the *9 status, and recognizing that eating garlic is panel opinion designated be non-preee- as inevitably a experience, shared Gilroy dential and non-citable. The majority has Although 5. GGFA chair of was a or required by that GGFA was officer, showing there is no he name a that was officer as its chair of security. acting private other than in his capacity as Furthermore, security. "And, GGFA chair of actors, most dear eat no onions nor presented there is no by evidence garlic, we for are to utter sweet breath.” required Hatters that Officer Kludt was to be Shakespeare, Night’s William A Midsummer custom, Dream, security by City 4, the chair of policy or act sc. 2.
959
[sjtate itself’);
fairly treated as that
the First Amendment
reach
declined
(2)
function
public
governmental
or
that nei-
to hold
has elected
but
question,
(state
352,
test,
449
id. at
95 S.Ct.
nor the
see
Association
the Festival
ther
entity
a
present
private
action is
when
The evi-
action.
engaged
state
was
traditionally
functions
and exclu
exercises
dence,
light
in the
most favorable
viewed
(3)
state);
the state
sively reserved to the
Hatters,
demonstrates
to the
test,
457
Yaretsky,
Blum v.
compulsion
see
precluding
of fact
issues
genuine
there are
2777,
991, 1004,
73 L.Ed.2d
102
Therefore,
respect-
I
U.S.
S.Ct.
summary'judgment.
(“a [sjtate
(1982)
normally can be held
534
fully dissent.
only
private
for a
decision
responsible
power
coercive
I
when it has exercised
encourage
significant
such
provided
has
preclude
fact
issues of material
Genuine
covert,
ment, either overt or
As
to the Festival
judgment as
summary
to be that of
in law be deemed
choice must
notes,
is a
it
majority
theAs
sociation.
(4)
[sjtate”);
ac
finally,
joint
private
a
principle
well-established
test,
Sparks, 449 U.S.
see
v.
tion
Dennis
a state
liability
subject
entity can be
(1980)
183,
27, 101
24,
ternal marks The otic relationship. Acad., See Brentwood was, argue 298-99,121 Hatters do not that it and the 531 U.S. at S.Ct. 924. only Festival Association allots three sen Viewing the in light evidence the most tences of its brief affirm this common Hatters, favorable to the Top as we are point. sense Unfortunately, limiting its required to do here —a standard the ma- analysis organizing garlic to whether fes jority mention, fails to apply— let alone function, tival is an governmental exclusive demonstrates relationship be- majority ignores both the ultimate City tween the and the Festival Associa- inquiry state action Supreme and the tion sufficiently is intertwined to create a Court’s traditional means of answering triable joint issue of fact toas whether the question: “tak[ing] ap flexible action test has been satisfied. proach ... applying variety [and] First, intimate, the festival is not an tests to the facts Gallagher of each case.” private gathering. It largest is the event Concert, Young v. Neil Freedom 49 F.3d year Gilroy. As the district court (10th 1442, Cir.1995); 1447 see also Brent noted, the population Gilroy expands Acad., 296, wood 531 U.S. S.Ct. 924 festival, five-fold during the with the con- (noting that a “host of facts” can bear on comitant significant impact on the local whether fairly action is attributable to the economy. 4,000 Over community volun- state and describing numerous tests used teers —over percent ten of the citizens of Court). Supreme capacity at some the festi- —work case, In this test most reason- festival, val. For the duration of the it ably applies to the Festival Association’s engulfs City. In order to administer relationship with “joint is the this safely, mammoth event the festival test, action” test. this Under required the assistance and involvement of Hatters have demonstrated that a triable City’s Division, Engineering Building issue of material fact exists as to whether Safety Division, & Department, Fire the Festival Association’s actions are “fair- Chemical Division, Control and Police De- ly attributable to Lugar, [s]tate.” 457 partment. words, In other very na- 937,102 U.S. at S.Ct. 2744. ture of the festival requires significant in- tertwining of resources between Joint action private par “exists where a and the Festival Association. ty is ‘a willful participant joint action ” [sjtate with the or agents.’ its Collins v. Second, the presence of an agreement Womancare, (9th 1145, 878 F.2d Cir. between the government and the 1989). lynchpin finding “joint party is also a significant factor in apply- action” is the existence of “a substantial ing joint action test. “The Supreme degree cooperative action.” Id. Joint Court has joint said [the action test] action government exists when the “has ‘so plaintiff satisfied when the is able to estab- far insinuated itself a position into of inter agreement, lish an conspiracy between dependence with private entity] [the that it government actor a private party.” recognized must be joint as a participant Hanlon, Berger v. ” (altera in the challenged activity.’ Cir.1997) Id. Dennis, (citing at 27- U.S. tion in original). Thus, joint action 28, 183), grounds, rev’d on other test will be satisfied when the actions of 526 U.S. S.Ct. L.Ed.2d the state and private party are inter (per curiam), opinion reinstated, 188 twined or when the parties symbi- Cir.1999). have a F.3d 1155 *11 dur- supervisor her direct geant Kludt was use of of the case, a condition as this
In employment regular her course of ing the the Festi- City required the property, the testified that Bergman also City. the a with and receive apply to Association val festival, Sergeant Kludt when during the condi- of the As one permit. event special security, she would serving as head of City the was permit, receiving the tions for in ca- him his from either take directions to staff Association the Festival required in his supervisor or as her direct pacity and City police officers with the festival Festival security chief for the as capacity expense. City for the the reimburse to be Association. deployed personnel of number Associa- Festival the negotiated between issue create a triable facts alone These City gener- although the City, and the tion coop- the substantial fact as to whether of percent twenty-five provided ally City between the that existed eration police offi- force. These festival’s respect with the Festival Association duty and to be considered cers were action. joint constituted the dress code scope of the course working within at However, of the encounter specifics the City sta- the while with employment their of evidence substantial provide also issue festival. at the tioned the intertwining of the cooperation and Association. and the Festival City in actors the Third, of state participation joint is an indicia private association the cir previously have considered We Acad., at 531 U.S. See Brentwood action. in officer’s police in a which cumstances composition (examining action private in enforcement volvement athletic private of a membership the pri the action such that state constitutes actor). it was a state holding association in a of cases liable line entity is vate security for the tradition, the head of By vehicle private at involving presence the was member Festival Association See, e.g., evictions. repossessions nowas The 2000 festival force. City police City, 400 F.3d Meyers v. Redwood the year question, exception. In 380; Howerton, Har Cir.2005); F.2d Associa- security for Festival head of Roseburg, ris v. Donald Sergeant Police tion was Cir.1981). us that cases teach These Kludt. acquiescence mere “[w]hile is insufficient of trouble’ by in ‘stand case offi-
Fourth, City’s police although action enforcement to convert” scope course acted within cers state, “police one into attributable City when de- with employment their ... constitute aid does festival, intervention officers took ployed Harris, F.2d at state action.” with the Festival Association from orders effectuating Even mere assistance Associa- enforcing the Festival respect to of a action or intimidation festival, enforcement Before code. tion’s dress refrain him to “as to cause so briefings person as to attended City police officers will right to resist” legal exercising his and were the dress code parameters Id. finding of state action. support a wearing persons exclude instructed to conflict,” inspire that could clothing “group Harris, where state action found we Berg- Brenda officer Gilroy City police in a semi- security interest holding man man testified. accompa- two officers requested tractor repossess attempted he ny him while City police officer Bergman,
Officer Har- 1124. When Id. at the semi-tractor. Hat- removing participated who truck, his confronted ris, the owner festival, that Ser- testified from the ters *12 creditor, one of the “stepped officers repeated where he Bergman’s ultimatum. and told get Orta, Harris to ‘stand back Marcelo Plaintiff Jr. recalled that ” away.’ response Id. In ques- Bergman Harris’s Officer supported by Kludt tell- tion happening, about what was ing the officer they Hatters a gang explained that the creditor they “just leave, had come to that needed to they that repossess truck, he, and that the offi- didn’t our Finally, kind there.” want once “ ” cer, ‘came by.’ out to stand Id. Harris the Top Hatters had received their re- funds, testified that him the officer told if he Gilroy police other uniformed offi- any way, interfered in he would be taken cers the plaintiffs escorted to their bikes. jail, if the officers had not been Those officers also Berg- echoed Kludt and present, physically man, he would have resisted saying, you “All have to do is take repossession. off, Id. at 1127. Concluding your patch you go can in.” back that an officer’s assistance or intimidation Bergman Officer and other uniformed action, is sufficient to constitute state we Gilroy police actively officers assisted Ser- held that the officer’s conduct had convert- geant Kludt in enforcing the Festival Asso- repossession ed the in Hams into state by ciation’s dress code requesting that the action. Id. plaintiffs Bergman, follow demanding that Harris,
As in here Officer Bergman they vests, did their remove and lending merely more than by “stand in case of Kludt’s own statements “an air of authori- trouble”: actively she ty.” Moreover, assisted Kludt at least two of the enforcing the Festival Association’s un- Hatters testified that they knew Kludt policy. First, written dress code Berg- himself to Gilroy police officer, be a as he man, direction, approached Kludt’s identified himself to them as such and Top Hatters and ordered them to follow wore a badge. These actions meet Har- her to the festival’s gate. entrance Ac- ris’s standard for state action—Officer cording plaintiff Desrosiers, Donald Bergman he and the other officers did obeyed Bergman precisely because she more merely than stand case of clearly an officer: “when a they offi- actively Kludt in aided en- trouble — cer up says comes you follow you, forcing the Festival Association’s dress follow them. That’s the nature code. law.... It threatening.” felt Kludt asked Our decision sup- Womancare also Bergman to approach the Top Hatters ports the conclusion that the Festival As- precisely because he was hoping for that sociation’s actions are fairly attributable to armed, effect—as an officer, uniformed See 878 state. F.2d 1145. In Woman- Kludt Bergman believed give “would some care, group we held of anti-abortion air of authority” request to his protestors had satisfy failed to joint Top Hatters remove their vests or leave activity test for state employ- action when
the festival. ees of a woman’s health performed center
Moreover, at least one of the Top Hat-
citizens’ arrests on protestors
whom
ters testified that it was
Bergman
Officer
believed were violating
injunction.
Id.
who first informed the Top
at 1155. While we noted that there “the
festival’s
policy,
dress code
impetus
indicated
for the arrests” came from the
that if they refused to remove their “col- health
employees,
center’s
not from the
ors,” they would have to leave the festival. police,
emphasized
we
the independence of
Sergeant
joined
then
Bergman
Kludt
(“In
officers.
Id. at 1155-56
Hatters at
gate,
short,
festival’s
there is no indication in the record
*13
Association’s se-
by
the Festival
called
independent
use
failed to
agents
state
that
the
effectuate
in order to
curity chair
judgment....”).
on the Festival
based
removal
plaintiffs’
at
first
Womancare,
employees
the
a
is
There
thus
policies.
own
Association’s
with the
protestors
the
to
tempted
serve
to wheth-
fact as
of material
genuine issue
failed,
effort
that
and when
injunction,
the
to
lev-
participation rose
Bergman’s
er
at 1146. Once
Id.
police.
called the
to
sufficient
cooperation”
“substantial
el of
scene,
on the
arrived
had
officer
police
a
activ-
joint
action under the
state
establish
in
independent
conducted “an
officer
the
ity test.
ar
...
“refused
then
and
vestigation”
authority.”
own
on his
protestors
the
rest
II
noted that
Additionally, we
Id. at
concluded
properly
court
The district
any facts to
alleged
had not
protestors
sum-
precluded
of fact
issues
that triable
contention
employees’
contradict the
City and Officer
mary judgment as to
neutrali
policy
“police
maintained
of state action.
question
Bergman on
had
plaintiffs
Id. The
dispute.”
ty
[the]
from which
evidence
“presented no
A
plan, cus:
prearranged
‘a
could infer
court
doubt that Officer
really no
substitut
There is
policy
tomary procedure,
of law
under color
acting
Bergman
for that
was
party
private
of a
judgment
ed the
”
Hatters from
removed
v. Con when she
Carey
Id.
police.’
(quoting
duty
on
with the
Inc.,
1404 the
She was
Airlines,
F.2d
festival.
tinental
She was
the incident.
time of
Cir.1987)).
City at the
of her
scope
acting within
course
removing
for
Here,
impetus
while
uniformed, vi-
was
She
City employment.
also
the festival
from
Top Hatters
armed,
wearing
badge.
She
sibly
not the
private party
from the
came
of her
to assist because
was summoned
enlisted Officer
state,
Kludt
Sergeant
She identi-
officer.
authority as
Rath-
beginning.
Bergman’s aid
officer, and she used her
as an
fied herself
assistance
calling
er than
after
Top Hat-
authority
remove the
official
employ-
as the
plaintiffs
approaching
These factors are
the festival.
ters from
did,
Kludt asked
here
ees Womancare
she was act-
establish
clearly sufficient
with
the initial contact
Bergman make
removing the
when
color of law
ing under
“air of
He
her
relied
Hatters.
properly
Hatters,
district court
as the
festi-
out of the
authority” to escort them
Meshriy,
See,
Traver v.
e.g.,
concluded.
Moreover,
a confrontation.
without
val
Cir.1980)
(holding
934, 938
627 F.2d
inde-
as an
participate
not
Bergman did
as a securi-
serving
off-duty officer
that an
official,
rather
but
neutral
pendent
under color
acting
was
ty
at bank
officer
to enforce
direction
at Kludt’s
acted
police iden-
flashed
the officer
of law when
Bergman
policies.
Association’s
Festival
plaintiff).
arresting the
tification when
testimony that indicated
provided
also
only
was
Bergman
City argues
festi-
working at the
Gilroy police officers
trouble.”
in case of
to “stand
there
to the
customarily trained as
val were
and, at the
otherwise
suggests
The record
had the
code
dress
festival’s
certainly
triable issue
minimum,
there
in Woman-
it. Unlike
authority to enforce
noted
As we
to that assertion.
of fact as
not summoned
care, then, Bergman was
[in
and aid
Harris,
intervention
“police
neutral,
indepen-
her
scene
exercise
does consti-
actions]
private
situation,
enforcement
but
judgment about the
dent
action,”
tute
may
of,
state
and “there
be a decision
a subordinate.”
v. City
Ulrich
deprivation
§
within
meaning
County
Francisco,
&
San
... when
officer assists in effectuating
[an]
(9th Cir.2002) (internal
984-85
quotation
[the
enforcement
... or so
action]
omitted).
marks and citations
*14
plaintiff]
intimidates [the
as to cause him
The key question here is whether the
to refrain
exercising
from
legal
his
policy
had
or custom enforcing
of
rightfs]....”
F.2d at 1127.
The rec-
the Festival Association’s
code at
dress
the
ord
Bergman
indicates that
her au-
used
2000 festival. There clearly is a triable
thority to
removing
in
Top
assist
the
Hat-
issue
fact
ters,
question.
of
as to that
Officer
they acquiesced
response
in
to
Bergman
her
authority
official
testified that an
incident at
intimidation.
the
“helped inspire
festival
a type
poli-
of
B
cy tightening down
type
dress code
is-
The district
properly
added).
court also
conclud
(Emphasis
sues.”
In response to
ed that there were triable issues of fact as
question
of whether she had received
to
City’s liability
§
under
1983 for
any
of
type
directive or order from the
Bergman’s
Officer
course,
actions. Of
supervisor
of
operations as to the
mere fact
that Officer Bergman was a
code,
dress
responded
she
that officers
state actor is not sufficient to establish the
stationed
the festival
briefings
attended
City’s liability.
summary
To survive
judg where
supervisor]
“[the
would basically
ment on
City’s
liability
issue
for give parameters of the dress code.” She
Bergman’s actions,
Officer
Hat
summarized
parameters
these
by explain-
ters must demonstrate that
gen
there is a
ing that “we
trying
group
exclude
uine issue of material fact as to whether
clothing
inspire
could
conflict.” Con-
pursuant
she acted
governmental
to a
poli
sequently, she testified that she would
cy or custom. See
Dep’t
Monell v.
Soc.
have enforced the dress
on her
code
own
Servs.,
658, 690-94,
U.S.
initiative
expel
visitors
in ap-
dressed
(1978) (“[L]ocal
The direct precedent under our hold in oth- would than this case stronger much District v. First Judicial triable Sammartano are there held we have in which ers Cir.2002), (9th Court, F.3d 959 See concerning custom. issues factual motorcycle their wearing Hatters’ act Pomona, 223 F.3d v. Blair con- expressive insignia was vests Cir.2000) “a club (testimony about under protection deserving duct suffi- officers among police of silence” code fact); First Amendment. issue a triable to create cient 1126, 1142 Spencer, Wallis herein, I re- expressed For reasons con- (custom Cir.2000) inferred spectfully dissent. *15 F.3d 132 County Shasta duct); Henry v. Cir.1997) (same); v. Navarro 512, 518 GOULD, dissenting Judge, Circuit (911 Cir.1995) 712, Block, F.3d part: was testimony that it dispatcher’s not Department the Sheriffs practice statement, “policy was there no Because emer- as calls violence classify domestic officially decision ordinance, regulation, issue a triable create sufficient gencies City of by the promulgated” adopted and at all fact). Indeed, is no evidence there issue, code enforce dress Gilroy to as- City officers record De v. under Monell not liable city is enforce— not to to the festival signed 658, Services, 436 U.S. Social partment of Festi- of—the in the enforcement or assist L.Ed.2d 690-91, S.Ct. code. dress unwritten Association’s val with much (1978). agree I Accordingly, presenta majority’s of the substance summary grant of considering the majority opinion. IV of the in Part tion inferences all must draw we judgment, ma agree I with way, another Stated light in the evidence the record construe foot except for analysis, jority’s Monell See Top Hatters. most favorable “[bjecause reciting and the sentence note 5 Katz, 533 U.S. Saucier violation, there constitutional is there no (2001). Con- 2151, 150 L.Ed.2d S.Ct. liability.” municipal can be no evidence, is little there the record sidering of assist- had a doubt that issue there I conclude Because Festival enforcement in the ing Gilroy Garlic whether fact as to There- in 2000. dress code Association’s City Festival Association fact as issue fore, a triable exists there to render sufficient joint action engaged in Mo- liability under City’s potential actor, I of join I Part a state the festival correctly conclud- nell, court district as the issue If this fact dissent. Judge Thomas’s disagree with respectfully I thus ed. then favorably appellants, is decided ap- summary judgment majority that of constitu- possibility distinct there is the City. as to propriate cor- cannot violation, issue but that tional record. current on the rectly be reached Ill concluding that the panel decision were not rights constitutional Top Hatters’ non-prece- designated has been
violated has majority declined
dential unnecessary Thus, it is issue.
reach that any detail. that question
to discuss