Orin v. Barclay

• Decision Date: 09 November 2001
• Docket Number: PLAINTIFF-APPELLANT,DEFENDANTS-APPELLEES,No. 00-35177,00-35177
• Citation: 272 F.3d 1207
• Parties: (9th Cir. 2001) BENJAMIN K. ORIN,v. RICHARD BARCLAY, AND HIS MARITAL COMMUNITY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; ROBERT WALLACE, AND HIS MARITAL COMMUNITY, IN HIS INDIVIDUAL CAPACITY; ALAN HORNBERG, AND HIS MARITAL COMMUNITY, IN HIS INDIVIDUAL CAPACITY; RICK MCCLUSKEY, AND HIS MARITAL COMMUNITY, IN HIS INDIVIDUAL CAPACITY; CITY OF BREMERTON, A MUNICIPAL CORPORATION,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1207

272 F.3d 1207 (9th Cir. 2001)

BENJAMIN K. ORIN, PLAINTIFF-APPELLANT v. RICHARD BARCLAY, AND HIS MARITAL COMMUNITY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; ROBERT WALLACE, AND HIS MARITAL COMMUNITY, IN HIS INDIVIDUAL CAPACITY; ALAN HORNBERG, AND HIS MARITAL COMMUNITY, IN HIS INDIVIDUAL CAPACITY; RICK MCCLUSKEY, AND HIS MARITAL COMMUNITY, IN HIS INDIVIDUAL CAPACITY; CITY OF BREMERTON, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES

No. 00-35177

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 10, 2001

Filed November 9, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] A. Chad Allred, Ellis, Li & McKinstry, Seattle, Washington, Theresa Schrempp, Sonkin & Schrempp, PLLC, Mercer Island, Washington, for the plaintiff-appellant.

Catherine Hendricks, Attorney General's Office, Tort Claims Division, Seattle, Washington; Steven T. Reich, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, Seattle, Washington, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-99-05125-RJB

Before: Boochever, Tashima, and Tallman, Circuit Judges.

Tallman, Circuit Judge:

Plaintiff Benjamin Orin was told by a community college official that he could protest abortion on campus only if he did not create a disturbance, interfere with students' access to school buildings, or couch his protest in overtly religious terms. After four factious hours of demonstration, campus security asked Orin to leave because he was violating these conditions. When he refused, campus security called City of Bremerton police officers who, after asking Orin to leave twice more, arrested him for criminal trespass and failure to disperse.

We must determine whether the conditions imposed on the protest violated Orin's clearly established First Amendment rights such that the school officials, the police officers, or the City of Bremerton may be liable to Orin for damages under 42 U.S.C. § § 1983 and 1985(3). We must also determine whether the district court properly held that none of Orin's state tort law causes of action can survive summary judgment. We have jurisdiction, and affirm in part and reverse in part.

I.

Orin is a member of Positively Pro-Life, an anti-abortion group that demonstrates at high schools, colleges, and medical clinics around the Northwest. On October 30, 1997, Orin and Jim McIntyre appeared unannounced in the office of Richard Barclay, Interim Dean of Students at Olympic Community College ("OCC").¹ They warned Barclay that they and a third Positively Pro-Life member intended to stage an anti-abortion protest on OCC's main quad. The protest was to include display of two large posters graphically depicting aborted fetuses in various states of dismemberment. They warned Barclay that the signs had elicited strong responses at prior protests, including physical violence.

Barclay informed the protestors that they must apply for and obtain a permit from OCC if they wished to hold an event on the quad. Orin responded, "We have a prior permit. The Bill of Rights says we can be here." Barclay told Orin that he could conduct the demonstration without a permit so long as he did not: (1) breach the peace or cause a disturbance; (2) interfere with campus activities or access to school buildings; or (3) engage in religious worship or instruction. The protestors then left for the main quad. Barclay dispatched two security guards to monitor the demonstration.

The Dean's Office began receiving student complaints about the protestors and their posters soon after the protest began. OCC accommodated the demonstration for approximately four hours. The size and temperament of the crowd attracted by the demonstration waxed and waned. At times there were only five or six students; at other times there were more than one hundred. On two occasions campus security had to interpose themselves between the crowd and the protestors to avert physical violence.

Shortly after 4:00 p.m., OCC security chief Robert "Rocky" Wallace asked the protestors to leave. When they refused, he called to request police assistance. He called again moments later to ask dispatch to expedite the response because the situation was "turning physical." The parties hotly dispute the events that precipitated Wallace's call to the police.

The demonstrators allege that Barclay appeared at the protest and informed them that if they "mentioned God or referred to th[e] Bible [he] would have[them] arrested and physically removed from campus." Orin allegedly responded that he would continue to decry abortion in religious terms and that Barclay would have to have him arrested. Barclay responded that he would do so, and the police arrived ten to fifteen minutes later. The demonstrators allege that they uttered no incendiary epithets and that they never felt threatened by the crowd.

By contrast, the security officers allege that the demonstration degenerated into an openly hostile incitement of an already angry crowd. Four students submitted declarations in support of the officers, indicating that they felt the demonstrators were "verbally assaulting students" and "attempting to pick a fight." They claim they heard the protestors call students "baby killers" and use incendiary racial and sexist epithets. In the security officers' estimation, physical conflict between the students and the demonstrators was inevitable. The security guards asked the demonstrators to leave because they "could no longer control the situation and the situation was turning physical."

Officer Alan Hornberg of the Bremerton Police Department was dispatched to OCC to respond to "a reported group of protesters that were refusing to leave and a large unruly crowd that was getting out of hand." Wallace met Hornberg at the edge of campus. As they walked to the quad, where the demonstration was being held, Wallace told Hornberg that the protestors had violated the conditions placed on them by Barclay, "the student crowd was agitated to the point of physical violence against the protesters," and "the security staff didn't feel that they had the manpower to protect the anti-abortion protesters from the students." He also informed Hornberg that McIntyre had hit one of the security officers, knocking his hat off his head.²

Upon arriving at the quad, Hornberg observed a crowd of forty to fifty students shouting angrily at the demonstrators. Hornberg approached the demonstrators and asked them to leave. Orin told Hornberg that campus officials only wanted him arrested because he was talking about religion. Orin then exclaimed that he was exercising his First Amendment right to free speech and "was not going anywhere." Hornberg again asked Orin to leave. When Orin again refused, Hornberg arrested him for criminal trespass and failure to disperse.

Bremerton Police Officer Rick McCluskey arrived after Orin's arrest. Hornberg reported that Orin was under arrest for trespassing and failing to disperse. McCluskey told Hornberg to take Orin to jail for booking.

Orin alleges that, upon reaching the jail, Hornberg questioned him without first reading him his Miranda rights. According to Orin, however, when he asked about his rights, Hornberg recited them to him. Orin also alleges a number of constitutional violations arising out of the conditions of his jail cell (it was cold, dirty, and uncomfortable), the ingredients used in the jail food (it was not vegetarian), and the conduct of jail personnel.

Orin sued Dean Barclay, security officer Wallace, police officers Hornberg and McCluskey, and the City of Bremerton, stating five causes of action: (1) violation of his First Amendment rights³ compensable under 42 U.S.C. § 1983; (2) conspiracy to violate those rights compensable under 42 U.S.C. § 1985(3); (3) false arrest; (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional distress. Defendants moved for summary judgment on all claims.

The district court found that the individual defendants were entitled to qualified immunity against Orin's First Amendment claims. The district court granted all defendants' motions for summary judgment as to Orin's remaining claims. Orin timely appealed.

II.

A district court order granting summary judgment as to all claims and all parties constitutes a "final order " over which we have jurisdiction. 28 U.S.C. § 1291 (2000). We review a district court order granting summary judgment de novo, construing all evidence and drawing all reasonable inferences in favor of the non-moving party. See Wong v. Regents of the Univ. of Cal., 192 F.3d 807, 817 (9th Cir. 1999).

A.

Section 1983 permits an individual whose federal statutory or constitutional rights have been violated by a public official acting under color of state law to sue the official for damages. 42 U.S.C. § 1983 (2000). Public officials are afforded protection, however, "from undue interference with their duties and from potentially disabling threats of liability." Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Qualified immunity shields them "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818. If a public official could reasonably have believed that his actions were legal in light of clearly established law and the information he possessed at the time, then his conduct falls within the protective sanctuary of qualified immunity. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).

To determine whether each individual defendant is entitled to qualified immunity, we must first determine whether Orin has stated a prima facie claim that a defendant violated his constitutional rights. Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 2155 (2001). If we determine...