Intern. Society for Krishna Consciousness v. Reber

• Citation: 454 F. Supp. 1385
• Decision Date: 14 August 1978
• Docket Number: No. CV 76-545-WMB.,CV 76-545-WMB.
• Court: U.S. District Court — Central District of California
• Parties: INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., and Hasyapriya Das, on behalf of themselves and all International Society for Krishna Consciousness Members, Plaintiffs, v. Robert REBER, Buena Park Chief of Police, and Cecil Hicks, Orange County District Attorney, Individually, and in their official capacities, Russell Knott, and Knott's Berry Farm, a Partnership, Defendants.

454 F. Supp. 1385

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., and Hasyapriya Das, on behalf of themselves and all International Society for Krishna Consciousness Members, Plaintiffs, v. Robert REBER, Buena Park Chief of Police, and Cecil Hicks, Orange County District Attorney, Individually, and in their official capacities, Russell Knott, and Knott's Berry Farm, a Partnership, Defendants.

No. CV 76-545-WMB.

United States District Court, C. D. California.

August 14, 1978.

Barry A. Fisher, Fleishman, McDaniel, Brown & Weston, Los Angeles, Cal., for plaintiffs.

J. M. Brennan, Newport Beach, Cal., Cliff Harris, Deputy Dist. Atty., Santa Ana, Cal., Ronald H. Bevins, Anaheim, Cal., for defendants.

MEMORANDUM OPINION

WM. MATTHEW BYRNE, Jr., District Judge.

This is a suit for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-02, brought by International Society For Krishna Consciousness, Inc. ("ISKCON", a non-profit California corporation) and Hasyapriya Das, who is an adherent to the teachings of ISKCON, to enjoin the arrest and prosecution of its members for trespass while distributing religious literature and soliciting donations to support Plaintiffs' church on a segment of the sidewalks abutting Grand Avenue between Crescent Avenue and La Palma Avenue, Buena Park, California. The cause was tried to the Court on stipulated facts.

Defendants are Robert Reber, Buena Park City Police Chief; Cecil Hicks, Orange County District Attorney; Knott's Berry Farm, a California partnership which operates an amusement park in Buena Park known as Knott's Berry Farm; and Russell Knott, a partner in the Knott's Berry Farm partnership.

The Plaintiffs predicate their action against the Defendants on the right to freedom of speech protected under the First and Fourteenth Amendments.

I THE FACTS

Grand Avenue begins at its southern point in a residential community and proceeds north approximately 1½ miles where it ends at its northern point as it enters and merges into State Highway 39 (Beach Boulevard). It is the last 1,021.24 feet of the northern end of Grand Avenue on which the activity by Plaintiffs occurred and on which Plaintiffs seek to establish rights by this action.

Except for this section, Grand Avenue is a publicly owned and maintained street open to public vehicular and pedestrian use. The 1,021.24 foot section of Grand Avenue was previously owned by the City of Buena Park, but was vacated to Knott's Berry Farm in 1967 by resolution of the City Council. The land abutting it on either side of the 1,021.24 foot section of Grand Avenue is owned in fee simple and entirely maintained by Knott's Berry Farm. Vehicles may proceed only in a southerly direction through the privately owned section of Grand Avenue. On Christmas Day of each year, the section is completely closed to pedestrian and vehicular traffic by Knott's Berry Farm. At various times of the year, the section has been closed to vehicular traffic by the Buena Park Police Department due to traffic congestion. Several times a week, Knott's Berry Farm employees divert traffic from the section of Grand Avenue into a parking area when heavy traffic so requires.

The land surrounding this section of Grand Avenue is owned by Knott's Berry Farm and used as an amusement park which includes rides, games, restaurants, shops and a non-denominational church. On either side of the 1,021.24 foot section of Grand Avenue are shops and a restaurant owned and operated by Knott's Berry Farm but open to the general public, along with a bus stop, mailboxes, and newspaper racks. The entrance gate to the west portion of the park is located behind the shops, and this gate is accessible only from the section of Grand Avenue in question. Pedestrians commonly congregate in this area and use it to enter and exit the park.

A 6 inch by 12 inch plaque is located in the sidewalk at both the northern and southern ends of the 1,021.24 foot section which states: "Private Property — Permission to Pass Over Revocable at Any Time." There are no physical obstructions to pedestrian traffic within this section.

The amusement park is bounded by Stanton Avenue on the east side, Western Avenue on the west side, La Palma Avenue on the north side, and Crescent Avenue on the south side, and State Highway 39 traverses the park. These streets are publicly owned and maintained thoroughfares open to and dedicated for both vehicular and pedestrian public use. On entering and exiting the amusement park, the public necessarily uses these public streets.

On February 10, 1976, at 4:00 p. m., ISKCON members distributed their religious literature and verbally solicited financial contributions for their organization from individuals along the sidewalk within the 1,021.24 foot section of Grand Avenue owned by Knott's Berry Farm. No chanting, singing, shouting, sound amplification, or blockage of pedestrian or vehicular traffic occurred. A member of the Knott's Berry Farm Security Force, which is entirely controlled by Knott's Berry Farm, contacted Plaintiffs and advised them that they would be subject to arrest for trespass if the activity continued. This action was taken in conformity with Knott's Berry Farm's policy of refusing to allow members of any organization to solicit contributions, distribute literature or otherwise solicit or proselytize the public within any portion of the amusement park, including the relevant portion of Grand Avenue.

On the same date, Plaintiffs' representatives went to the Buena Park Police Department to clarify their rights to distribute literature and solicit donations along the section of Grand Avenue in question. An officer informed Plaintiffs that that segment of Grand Avenue was private, and that any arrest thereon would be by a Knott's Berry Farm employee and not by the police. The officer also told Plaintiffs that if a citizen's arrest was made, the Buena Park Police Department would receive custody of the person arrested and would prepare the paperwork for submission to the District Attorney's Office for complaint. Plaintiffs have never been arrested by Buena Park Police officers or an employee of Knott's Berry Farm for any activity occurring on Grand Avenue but Plaintiffs have refrained from engaging in said conduct under threat of such arrest.

II DISCUSSION OF THE MERITS

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), precludes federal suit when a state criminal action based on the same nucleus of operative facts is pending. Since Plaintiffs have not been arrested, Younger is not applicable to the instant action. Plaintiffs claim, however, that while they have not actually been arrested, they are threatened with the possibility of arrest if they engage further in distribution of their literature and verbal solicitation for financial contributions for their organization from individuals on the section of Grand Avenue owned by Knott's Berry Farm. The Supreme Court in Doran v. Salem Inn, 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), held that if there exists a threat of arrest which would be processed through the state courts, federal injunctive relief is proper as long as no criminal proceedings are in fact pending in state court. Thus, the existence of the potential for prosecution of Plaintiffs in the state courts does not preclude this court from granting injunctive relief.

Plaintiffs have stipulated that the Buena Park Police Department will process any citizen's arrest for submission to the District Attorney's Office for complaint. On this basis, Plaintiffs include as defendant the Buena Park Chief of Police, Reber, and the District Attorney for Orange County, Hicks, alleging that the potential for action on their part in processing a possible citizen's arrest by employees of Knott's Berry Farm chills Plaintiffs' exercise of their First Amendment rights. Under 42 U.S.C. § 1983, an action for deprivation of constitutional rights is available against one who under color of law "subjects or causes to be subjected" a person to such deprivation. Plaintiffs' Complaint contains no allegation of an actionable wrong on the part of either Reber of Hicks. The stipulated facts establish no actual controversy between Plaintiffs and Defendants Reber and Hicks, as required for declaratory relief under 28 U.S.C. § 2201. The Buena Park Police did not threaten Plaintiffs with arrest, but rather gave Plaintiffs advice at their request. A "controversy" cannot be created by challenging a defendant to state his opinion and then disputing the defendant's conclusions. Perlberg v. Northwestern Mutual Life Insurance Co., 62 F.Supp. 76 (E.D.Pa.1945). Plaintiffs have failed to state a claim against Reber and Hicks since they have not established an actual controversy upon which relief can be granted.

Plaintiffs may seek to include the Police Chief and District Attorney as defendants in order to bring the instant action more clearly within the gambit of the state action requirement of the Fourteenth Amendment which must be present if Plaintiffs are to prevail in their action for declaratory and injunctive relief based upon an alleged violation of their First Amendment rights to free speech. The ability to use state trespass laws to enforce private property rights, however, is irrelevant to the state action requirement of the Fourteenth Amendment.¹

The actual controversy in this action is between Plaintiffs and Defendants, Russell Knott and Knott's Berry Farm, owners of the property upon which Plaintiffs seek to exercise their rights of free speech. Plaintiffs contend that despite the fact that the section of Grand Avenue in question is privately owned and maintained, as long as it is used as a public street it is a traditional forum for free speech, and the owner (fulfilling the state's function) therefore may not prohibit First Amendment expression. Admittedly the section of Grand Avenue in question would...