Center for Bio-Ethical v. Los Angeles County

• Decision Date: 02 July 2008
• Docket Number: No. 05-55294.,05-55294.
• Citation: 533 F.3d 780
• Parties: CENTER FOR BIO-ETHICAL REFORM, INC.; Paul Kulas; Thomas Padberg, Plaintiffs-Appellants, v. LOS ANGELES COUNTY SHERIFF DEPARTMENT; Leroy D. Baca, in his official capacity as Sheriff; Xavier R. Aguilar, individually; Xavier R. Aguilar, in his official capacity as Sergeant; Dave Despot, individually; Dave Despot, in his official capacity as Deputy; Mark Darling, individually; Mark Darling, in his official capacity as Deputy; Mark C. Repcik, individually; Mark C. Repcik, in his official capacity as Deputy; Art Roberts, individually; Art Roberts, in his official capacity as an administrative official, Dodson Middle School, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

533 F.3d 780

CENTER FOR BIO-ETHICAL REFORM, INC.; Paul Kulas; Thomas Padberg, Plaintiffs-Appellants, v. LOS ANGELES COUNTY SHERIFF DEPARTMENT; Leroy D. Baca, in his official capacity as Sheriff; Xavier R. Aguilar, individually; Xavier R. Aguilar, in his official capacity as Sergeant; Dave Despot, individually; Dave Despot, in his official capacity as Deputy; Mark Darling, individually; Mark Darling, in his official capacity as Deputy; Mark C. Repcik, individually; Mark C. Repcik, in his official capacity as Deputy; Art Roberts, individually; Art Roberts, in his official capacity as an administrative official, Dodson Middle School, Defendants-Appellees.

No. 05-55294.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2007.

Filed July 2, 2008.

Robert J. Muise (argued), Thomas More Law Center, Ann Arbor, Michigan; James A. Hayes, Cummins & White LLP, Newport Beach, CA, for the plaintiffs-appellants.

Jennifer A.D. Lehman (argued), Deputy County Counsel, Raymond G. Fortner, County Counsel, Los Angeles, CA, for defendants-appellees Los Angeles County Sheriff's Department.

Julie Mullane (argued), Gary Robert Gibeaut, Nancy Mahan-Lamb, Lisa J. Brown, Gibeaut, Mahan & Briscoe, Los Angeles, CA, for defendant-appellee Art Roberts.

Appeal from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding.

Before: HARRY PREGERSON, W. FLETCHER, and MARSHA S. BERZON, Circuit Judges.

PREGERSON, Circuit Judge:

Plaintiffs drove a truck that displayed enlarged, graphic photographs of early-term aborted fetuses around the perimeter of a public middle school in Rancho Palos Verdes, California. Deputy Sheriffs were dispatched to the school. Plaintiffs contend that the officers violated their First Amendment rights by ordering Plaintiffs to remove their truck from an area adjacent to the school. Plaintiffs also contend that the officers violated their Fourth Amendment rights by detaining Plaintiffs for an unreasonable time and by searching their vehicle without consent.

Plaintiffs brought this action under 42 U.S.C. § 1983 seeking damages and injunctive and declaratory relief for violation of their First and Fourth Amendment rights. The district court held that the Deputy Sheriffs and Dodson Middle School Assistant Principal Art Roberts were entitled to qualified immunity and dismissed the damages claims against them. In addition, the court dismissed the lawsuit against Los Angeles County Sheriff Leroy D. Baca, a redundant defendant. After considering cross-motions for summary judgment, the district court granted summary judgment in favor of Defendants on the remaining First and Fourth Amendment claims. Plaintiffs timely appealed these orders.

We have jurisdiction under 28 U.S.C. § 1291. For the reasons set forth below, we reverse the district court's orders (1) granting Defendants' summary judgment motion on all the issues in the case, and (2) denying Plaintiffs' summary judgment motion with respect to Plaintiffs' First Amendment claim and Fourth Amendment Claim for unreasonable detention. We affirm the district court's order (1) dismissing Sheriff Leroy D. Baca and (2) granting qualified immunity to the individual defendants on the First Amendment claim. We remand for the district court to resolve Plaintiffs' conspiracy claim and request for injunctive relief.

I. BACKGROUND

A. Facts

Plaintiff Center for Bio-Ethical Reform (Bio-Ethical Reform) is a non-profit organization whose main purpose is to promote "prenatal justice and the right to life for the unborn, the disabled, the infirm, the aged, and all vulnerable peoples through education and the development of innovative educational programs." One of the educational programs is called the "Reproductive Choice Campaign." With this campaign, Bio-Ethical Reform seeks to "expose as many people as possible to the reality of abortion" by displaying large, graphic photographs of first-term aborted fetuses on the sides of trucks. The trucks often drive on surface streets and freeways, but Bio-Ethical Reform employees and volunteers sometimes take the trucks to specified places to target particular audiences.

Middle school and high school students are a common target audience. Bio-Ethical Reform conducts its campaign at such schools because it believes its message will discourage teenage abortions. Bio-Ethical Reform also believes that "students who are old enough to have an abortion are old enough to see one." Bio-Ethical Reform personnel arrive at the start of the academic day so that students will see Bio-Ethical Reforms's enlarged photographic images of first-term aborted fetuses as they arrive for school.

Gregg Cunningham, Bio-Ethical Reform's Executive Director, acknowledged in his deposition that he has seen students "faint," "become physically ill," "weep," "avert their gaze," and "leave the room" in response to these pictures. Cunningham said that the "typical" reaction is disbelief. He defended Bio-Ethical Reform's display of aborted fetuses, saying that "[s]tudents are routinely exposed to disturbing images, whether it's airlines exploding into skyscrapers or choose your atrocity." Cunningham also asserted that exposing children to such pictures is the best way to teach them about the ethical issues involving abortion: "you can't teach inexpressively horrific historical fact in exclusive reliance on the written or spoken word. Teachers who teach about racial injustice use pictures of black people being beaten to their knees for trying to register to vote."

On March 24, 2003, Plaintiffs Paul Kulas, a Bio-Ethical Reform employee, and Thomas Padberg, a Bio-Ethical Reform volunteer, drove to Dodson Middle School in Rancho Palos Verdes, California. Kulas drove a truck that displayed the photographic images of aborted fetuses and Padberg drove an escort "security vehicle." The security vehicle was a white Ford Crown Victoria sedan equipped with a security cage, red-and-amber flashing lights, push bars, and antennae mounted on the roof. The two men arrived at the school at about 7:30 a.m. — about thirty minutes before classes began. They then drove on public streets around the perimeter of the school.

Plaintiffs' graphic display quickly caused concern among school officials. Defendant Art Roberts, an assistant principal at Dodson Middle School, identified traffic as one of his primary concerns. According to him, 85 to 95 percent of Dodson's 2000 students arrive by bus or car between 7:15 a.m. and 8:00 a.m. The students' arrival causes "heavy traffic" around the school. This traffic can become a safety hazard when drivers or pedestrians become upset, angry, or distracted. At a preliminary hearing, Roberts testified that during the time he had worked at Dodson Middle School, vehicles on streets around the school had struck five children and killed two.

On the day Plaintiffs were at Dodson Middle School, Assistant Principal Roberts observed some children stopping on the sidewalks and staring at the photographs of aborted fetuses, while others momentarily stood in the middle of the street. Faculty members also reported "abnormal" difficulty getting children onto the campus.

Assistant Principal Roberts identified additional concerns. He saw a number of children express anger over Plaintiffs' graphic display. He also overheard a group of boys planning to throw rocks at the truck. The group disbanded only after Roberts confronted them. Assistant Principal Roberts observed two or three girls crying. He also said that at least one class spent time discussing the truck's displayed images of aborted fetuses. Nevertheless, Assistant Principal Roberts said the school had a "fairly normal opening" and that all students he could see were on the campus by the start of classes at 8:01 a.m.

School officials contacted the Sheriff's Department at about 7:50 a.m. The dispatcher sent a text message to Deputy Sheriffs Mark Darling and Mark Repcik, who were driving separate vehicles. The message stated that an "[a]nti-abortion truck with offensive language and pictures is circling the school and videotaping the school and surrounding area." The Sheriff's Department station desk also radioed Deputy Repcik and told him a "large white truck [was] driving [around] the middle school [with] very graphic pictures on the sides and [was] disrupting the school."

At 8:05 a.m., Deputy Sheriffs Darling and Repcik stopped Plaintiff Kulas, who was driving the display truck, and Plaintiff Padberg, who was driving the "security vehicle." According to Kulas, Deputy Darling told him that the Deputy Sheriffs stopped the two vehicles because they were "driving these pictures around the school with offensive language, and ... scaring kids...." During the stop, no Deputy Sheriff drew his gun or handcuffed Kulas or Padberg. The deputies allowed Kulas and Padberg to move freely about the immediate area and talk to each other for the duration of the stop.

Thirty minutes later, Deputy Sheriff Sergeant Xavier Aguilar arrived. According to Deputy Sheriffs Darling and Repcik, they summoned Sergeant Aguilar, their supervisor, to the scene because they had never dealt with a comparable situation. Deputy Sheriff Dave Despot, the liaison to Dodson Middle School, was also summoned to the scene. He arrived between fifteen and thirty minutes after Aguilar arrived. Despot took photographs of the security vehicle and the truck. He then went into the school to speak with Assistant Principal Roberts.

At some point, Deputy Sheriff Darling entered the security vehicle to activate the switch for the flashing red-and-amber lights. Then, with Padberg's permission Darling searched the vehicle for weapons. The record does not indicate whether there were two discrete searches or only one.

Eventually, Assistant Principal Roberts accompanied Deputy Despot back to the scene, and, after reading California Penal Code § 626.8 to Kulas and Padberg,...