Fogel v. Collins

• Decision Date: 27 June 2008
• Docket Number: No. 06-15395.,06-15395.
• Citation: 531 F.3d 824
• Parties: Matthew FOGEL, Plaintiff-Appellant, v. Wesley COLLINS, Officer; Grass Valley Police Department; Michael Hooker, Officer; Jarod Johnson, Officer; Gary McClaughry, Officer; Greg McKenzie, Officer; Jason Perry, Officer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

531 F.3d 824

Matthew FOGEL, Plaintiff-Appellant, v. Wesley COLLINS, Officer; Grass Valley Police Department; Michael Hooker, Officer; Jarod Johnson, Officer; Gary McClaughry, Officer; Greg McKenzie, Officer; Jason Perry, Officer, Defendants-Appellees.

No. 06-15395.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 18, 2007.

Filed June 27, 2008.

Stephen A. Munkelt, Nevada City, NV, for the appellant.

Gayle K. Tonon, Truckee, CA, for the appellees.

Appeal from the United States District Court for the Eastern District of California; David F. Levi, District Judge, Presiding. D.C. No. CV-05-00444-DFL/KJM.

Before: MELVIN BRUNETTI, W. FLETCHER, and RICHARD R. CLIFTON, Circuit Judges.

W. FLETCHER, Circuit Judge:

Police officers of the City of Grass Valley, California, arrested plaintiff-appellant Matthew Fogel and impounded his van because of messages painted on the back of the vehicle. Fogel brought suit against Grass Valley and six police officers under 42 U.S.C. § 1983, alleging a violation of his First Amendment rights. The district court assumed without deciding that Fogel's First Amendment rights had been violated. On that assumption, it granted summary judgment for defendants, holding that the City of Grass Valley had not implemented an unconstitutional policy or custom, and that the police officers were entitled to qualified immunity. We hold rather than assume that Fogel's First Amendment rights were violated. We nevertheless affirm, for the reasons given by the district court.

I. Background

On May 25, 2004, Sergeant Michael Hooker of the Grass Valley Police Department received an anonymous phone call about a parked white Volkswagen van. The caller reported that messages written on the van frightened her. Sergeant Hooker located the unattended 1970 van in the lot of an apartment complex. The words "I AM A FUCKING SUICIDE BOMBER COMMUNIST TERRORIST!" were painted in block letters on the back of the van above the rear window. On the rear window was painted "PULL ME OVER! PLEASE, I DARE YA[.]" Below the window in slightly smaller letters was the text "ALLAH PRAISE THE PATRIOT ACT ... FUCKING JIHAD ON THE FIRST AMENDMENT! P.S. W.O.M.D. ON BOARD!" A small American flag was attached to the van below the lettering. The rest of the van was decorated with slogans and paintings that had no political or threatening character.

Sergeant Hooker was able to determine that the van belonged to Matthew Fogel, a 22-year-old resident of Nevada City, a town four miles away from Grass Valley. Hooker concluded that the messages on the van were just "political satire" and returned to the police station after taking digital photographs of the van. Hooker then called his superior, Defendant Captain Jarod Johnson, who was on back-up on-call duty. Hooker read Johnson the words on the van. Johnson disagreed with Hooker's characterization of the writing as mere satire. Johnson was "quite certain that a criminal act had been committed" and that the van needed to be removed from its location at the apartment lot.

Captain Johnson ordered Sergeant Hooker to "handle this as a bomb threat," citing the high terror alert in the country. Now, based on Johnson's instruction, Hooker "determined that in fact this was not protected speech, but was criminal." Hooker assigned the criminal investigation to Defendant Officer Jason Perry, who contacted the Department of Homeland Security ("DHS") and the Federal Bureau of Investigation ("FBI"). Perry soon learned that Fogel had no criminal history.

Sergeant Hooker returned to the van, joined by Officer Perry and defendant Officers Wesley Collins, Gary McClaughry, and Greg McKenzie. Hooker and Perry found Fogel fairly easily in an apartment in the complex with friends. Hooker and Perry asked Fogel about the van, and Fogel said that he had painted the messages earlier that day. Hooker, Perry and Fogel then walked out to the parking lot.

Officer Perry asked Fogel to explain the messages on the back of the van. There is some dispute about Fogel's response. The officers contend that Fogel stated he wanted to "scare people," and then stated that he wanted to "scare people into thinking." The officers contend further that Fogel said that he wanted to "terrorize the people of Nevada County like the Iraqi people are being terrorized by the U.S. military." Fogel denies making these statements. Despite these purported statements, Sergeant Hooker found Fogel to be "mild mannered," and Officer McKenzie stated in his deposition that he "personally didn't take [the writing] as a threat" and "[t]he context was not threatening" to him.

Fogel assured the officers that there was no bomb and he encouraged them to search the van. The search revealed no bomb, or indeed anything illegal, in the van. Although Captain Johnson had directed Sergeant Hooker to treat the situation as a bomb threat, the officers did not follow the Grass Valley Police Department's standard bomb threat procedures at the scene or during their search of the van.

While they were in the parking lot with Fogel, Officer Perry received word from DHS that the agency was "familiar with Fogel ... as being a local anti government type of person" who was considered a "local nut." Perry then arrested Fogel for violation of California Penal Code § 422 for "willfully threaten[ing] to commit a crime which will result in death or great bodily injury to another person"; § 148.1 for a "false report of secretion of explosive or facsimile bomb"; and § 415 for the "use[ ] of offensive words in a public place which are inherently likely to provoke an immediate violent reaction."

Sergeant Hooker called a private towing company to impound the van. He instructed the company not to release the van until Fogel removed or painted over the writing. Fogel was told he would have to remove or paint over the entire message in order to retrieve his vehicle from the impound lot. No one informed the towing company that a bomb might be inside because, according to Hooker, "at that point we did not believe there was one." Fogel was held in the Grass Valley jail overnight. The local District Attorney declined to press charges, and Fogel was released from jail the following morning. Fogel recovered his van later that day after painting over the messages with white paint.

Fogel filed a § 1983 suit for damages against the Grass Valley Police Department and officers Johnson, Hooker, Perry, Collins, McClaughry, and McKenzie in their individual capacities. He challenged his arrest and the seizure of his van, contending that his First, Fourth, and Fourteenth Amendment rights had been violated. He also brought state-law claims for false arrest, assault, and battery.

After discovery, defendants moved for summary judgment, and Fogel cross-moved for partial summary judgment. The district court granted summary judgment to all of the defendants. Fogel v. Grass Valley Police Dep't, 415 F.Supp.2d 1084, 1090 (E.D.Cal.2006). The court held that there was a genuine issue of disputed fact whether the writing on the van was a true threat and thus unprotected by the First Amendment. Id. at 1088. However, for purposes of qualified immunity, the court assumed that the writing was protected by the First Amendment and that the individual officers had violated Fogel's rights under the amendment. Id. at 1089. It then held that the individual officers were entitled to qualified immunity. Id. It further held that the City of Grass Valley had not acted pursuant to an unconstitutional policy or practice. Id. at 1090. Fogel timely appealed the district court's grant of summary judgment to defendants.¹

II. Standard of Review

We review a district court's grant of summary judgment de novo. We draw all legitimate factual inferences in favor of Fogel, the nonmoving party. Inouye v. Kemna, 504 F.3d 705, 711 (9th Cir.2007); Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir.2007).

III. Individual Officers

We first address Fogel's claim against the individual police officers. The district court determined that qualified immunity shielded the officers' actions because reasonable officers could have believed the language was not protected by the First Amendment. Fogel, 415 F.Supp.2d at 1089. Police officers performing discretionary functions within the scope of their employment have qualified immunity from civil suit as long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

A two-step analysis guides our qualified immunity inquiry. We first ask whether "[t]aken in the light most favorable to the party asserting the injury ... the facts alleged show the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If the facts, viewed in this light, show a constitutional violation, the "sequential step is to ask whether the right was clearly established." Id.

A. First Amendment Violation

The district court assumed without deciding that the individual officers violated Fogel's First Amendment rights. We reach that question and hold that the officers did violate his First Amendment rights. Deciding whether political speech is protected political hyperbole or an unprotected true threat can be an issue for a jury, particularly in cases of criminal prosecution. Melugin v. Hames, 38 F.3d 1478, 1485 (9th Cir.1994). However, Saucier instructs us, where possible, to rule on the constitutional issue in order "to set forth principles which will become the basis for a holding that a right is clearly established." 533 U.S. at 201, 121 S.Ct. 2151; see id. at 207, 121 S.Ct. 2151 (calling "important" this "instruction to the district courts and courts of appeals"); cf. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 567, 115 S.Ct. 2338...