Galvin v. Hay, 00-17425.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Berzon
• Citation: 361 F.3d 1134
• Parties: Bernie GALVIN, Sister; Ken Butigan; Jeff Johnson, Rev.; Karen Oliveto, Rev., for themselves and others similarly situated, as a Class, Plaintiffs-Appellants, v. Kevin HAY, Lieut.; Hugh Irwin, Major of the United States Park Police, and the United States, Defendants-Appellees.
• Docket Number: No. 00-17425.,00-17425.
• Decision Date: 18 March 2004

361 F.3d 1134

Bernie GALVIN, Sister; Ken Butigan; Jeff Johnson, Rev.; Karen Oliveto, Rev., for themselves and others similarly situated, as a Class, Plaintiffs-Appellants, v. Kevin HAY, Lieut.; Hugh Irwin, Major of the United States Park Police, and the United States, Defendants-Appellees.

No. 00-17425.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 2002.

Filed March 18, 2004.

COPYRIGHT MATERIAL OMITTED

Dennis Cunningham, San Francisco, CA, for the plaintiffs-appellants.

Robert M. Loeb and Douglas Hallward-Driemeier, Department of Justice, Civil Division, Appellate Staff, Washington, DC, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding, D.C. No. CV-99-04529-CRB.

Before HUG, JR. and BERZON, Circuit Judges, and LASNIK,^* District Judge.

OPINION

BERZON, Circuit Judge.

BACKGROUND

On March 9, 1997, members of the advocacy association Religious Witness with Homeless People (RWHP) conducted a protest at the San Francisco Presidio National Park (the Presidio). The demonstrators opposed a plan by the National Park Service, which administers the Presidio, to tear down 466 units of former army housing at the site, known as the Wherry Housing. The Park Service proposed restoring the area to its natural environment. RWHP campaigned for the Park Service to convert these units instead into housing for San Francisco's poor and homeless. To promote its cause, RWHP had staged three prior sit-ins at the Wherry Housing units that led to members' arrests and prosecutions for trespass.

The group's fourth demonstration is the centerpiece of this case. Shortly before March 9, lead plaintiff Sister Bernie Galvin was in contact with the United States Park Police to discuss a permit for RWHP's planned demonstration.¹ Defendant Lieutenant Kevin Hay of the Park Police refused to allow RWHP members to conduct a march through the Presidio unless they promised not to engage in civil disobedience. Sister Bernie did not agree to this condition. Instead, on March 9, 150 to 200 RWHP members gathered at the Presidio site on a lawn in front of a building containing both the Park's administration offices and a Visitor Center. The building was located some distance away from the Wherry Housing. Reverend Karen Oliveto described the purpose of the protest as being to "have a witness that is highly visible so that we can draw attention to the Wherry Housing." The Park Police had prepared for the demonstration by assembling a protective force that included mounted officers.

Sister Bernie and other members of RWHP were again informed by Hay that unless they promised not to engage in civil disobedience, no permit would be issued for their planned march. The demonstrators again refused to make this bargain. They unfurled banners, set up a portable public address system, and began a prayer service. The police promptly informed the demonstrators that if they did not move to a location 150 to 175 yards away designated as a "First Amendment area"² and marked out with a circle of orange traffic cones, they would be arrested. Some of the protestors complied and moved off the lawn, either to the designated area or toward a parking lot much closer than that area but separated from the lawn by a street. Eighty-three protestors remained and were arrested. Sister Bernie attempted to speak with the media but was told to leave the lawn by defendant Major Hugh Irwin, the ranking commander of the Park Police present. When she failed to do so Sister Bernie was arrested.

Sister Bernie testified at the protestors' criminal trial³ that the reason she and other protestors did not agree to move to the "First Amendment area" was because "[w]e are Religious Witness, and witness means that we proclaim that this is an unjust situation. For us to witness in closet [sic] or a closed door or in a remote area is not to permit us to witness at all." Father Louis Vitale, another protest leader, added that the "First Amendment area" was "down in the boonies. It was down in the overgrowth area.... We said we want to inform. That's really why we had come there, to present our case ... and going off in the corner of a parking lot somewhere didn't make any sense."

Most of the eighty-three persons arrested were subsequently convicted of demonstrating without a permit in violation of 36 C.F.R. § 2.51. Those convicted appealed to this court, which reversed the convictions and held that the arrests violated the demonstrators' First Amendment rights. United States v. Baugh, 187 F.3d 1037 (9th Cir.1999). The plaintiffs here, who are four of the arrested protestors, then sued Hay and Irwin and their employer, the United States, on behalf of a class composed of all the March 9, 1997 demonstrators.⁴ They alleged constitutional tort claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as well as claims for false arrest under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq.

The district court dismissed all of the plaintiffs' claims. In its first order, the district court granted the defendants' motion to dismiss the FTCA cause of action and most of the Bivens claims. In November 2000, after the parties agreed to a stipulation of facts, the district court granted, on qualified immunity grounds, defendants' motion for summary judgment concerning the alleged constitutional tort arising from defendants' dispersal of the prayer service. The court held:

[A] reasonable officer in the defendants' position could believe that his conduct was lawful because he could believe that the NPS restrictions were narrowly tailored to serve the NPS's interests in maintaining the park and protecting its users ... for a variety of reasons. First, the right to an unconditional permit was not clearly established in March 1997, so as far as these defendants knew, the no-trespassing condition was a reasonable way to be sure that RWHP's speech would not undermine NPS's interests. Second, the plaintiffs could have received permission to demonstrate either at the Visitor Center lawn or in the parking lot across the street by agreeing to the no-trespassing condition or by requesting a floating permit. Third, a floating permit would be narrowly tailored, because such a permit allows speakers to engage in expressive activity until the activity begins to harm the NPS's interests.

The district court further held:

[A] reasonable officer in the defendants' position could have believed ... that the First Amendment area was an ample alternative channel for RWHP to communicate their ideas. Several factors lead the Court to that conclusion. First, the officers were explicitly told that the First Amendment area was the designated location for protest activity. Such a direct instruction from supervisors would have led a reasonable officer to believe that he was acting lawfully.... Second, the officers knew that they could have granted a floating permit at RWHP's request. If RWHP had asked for a floating permit to demonstrate in the parking lot across the street from the Visitor Center and the officers had denied that request, a reasonable officer in that situation could not believe that the First Amendment area was an ample alternative. However, since the plaintiffs did not ask to move their protest into the parking lot, a reasonable officer could believe that the predesignated First Amendment area was an ample alternative. Third, the location of the First Amendment area relative to the Visitor Center was not so inadequate that a reasonable officer would necessarily have viewed the area as an insufficient channel for RWHP to communicate their views.

The plaintiffs appeal all aspects of the dismissal of their lawsuit. Viewing the evidence in the light most favorable to the nonmoving party, RWHP, and drawing all reasonable inferences in favor of that party, we must determine whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact. Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en banc).

DISCUSSION

I Qualified Immunity

Qualified immunity analysis proceeds in two stages. We must first inquire whether the plaintiffs have established a constitutional violation. If this threshold is passed, we examine whether defendants' actions violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quotation marks and citation omitted). The clearly established test is met if "in the light of pre-existing law the unlawfulness [is] apparent." Id. (quotation marks and citation omitted) (emphasis added). Even in the context of clearly established law, "[i]f the officer's mistake as to what the law requires is reasonable ... the officer is entitled to the immunity defense." Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

There are two discrete constitutional violations alleged by the plaintiffs: (1) the denial of a march permit without a concomitant promise on their part not to engage in civil disobedience; and (2) the dispersal of the prayer service that began as an alternative to the march. We examine these claims in turn.

A. The denial of the permit

Plaintiffs ask us to reverse the district court's ruling that, although Baugh held that it was constitutionally impermissible to require RWHP to promise not to engage in civil disobedience in return for a permit, the law on this issue was not clearly established at the time defendants acted. We decline to do so. We agree with the district court that, before Baugh, the contours of the constitutional right violated by the defendants' denial of the permit were not "sufficiently clear that a reasonable official would understand...