Riley's Am. Heritage Farms v. Elsasser

Decision Date17 March 2022
Docket Number20-55999
PartiesRiley's American Heritage Farms, a California corporation; James Patrick Riley, an individual, Plaintiffs-Appellants, v. James Elsasser; Steven Llanusa; Hilary LaConte; Beth Bingham; Nancy Treser Osgood; David S. Nemer; Ann O'Connor; Brenda Hamlett, Defendants-Appellees, and Claremont Unified School District, Defendant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Argued and Submitted August 31, 2021 Pasadena, California

Amended April 29, 2022

Appeal from the United States District Court for the Central District of California No. 5:18-cv-02185-JGB-SHK Jesus G Bernal, District Judge, Presiding

Thomas J. Eastmond (argued) and David A. Robinson, Holland &amp Knight LLP, Irvine, California; William J. Becker, Jr. and Jeremiah D. Graham, Freedom X, Los Angeles, California; for Plaintiffs-Appellants.

Daniel S. Modafferi (argued) and Golnar J. Fozi, Meyers Fozi &amp Dwork, LLP, Carlsbad, California, for Defendants-Appellees.

Before: Sandra S. Ikuta, Mark J. Bennett, and Ryan D. Nelson, Circuit Judges.

Civil Rights

The panel (1) amended its opinion affirming in part and reversing in part the district court's summary judgment for public school defendants in a 42 U.S.C. § 1983 action alleging First Amendment violations, (2) denied a petition for rehearing, (3) denied a petition for rehearing en banc on behalf of the court, and (4) ordered that no further petitions shall be entertained.

Plaintiff James Patrick Riley is one of the principal shareholders of Riley's American Heritage Farms ("Riley's Farm"), which provides historical reenactments of American events and hosts apple picking. Between 2001 and 2017, schools within the Claremont Unified School District booked and attended field trips to Riley's Farm. In 2018, Riley used his personal Twitter account to comment on a range of controversial social and political topics. After some parents complained and a local newspaper published an article about Riley and his Twitter postings, the School District severed its business relationship with Riley's Farm. Patrick Riley and Riley's Farm brought suit against the School District, individual members of the school board, and three school administrators (the "School defendants"), alleging retaliation for protected speech.

In partially affirming the district court's summary judgment in favor of the School defendants, the panel held that although there was a genuine issue of material fact on the issue of whether the Riley plaintiffs' First Amendment rights had been violated, the individual School defendants were entitled to qualified immunity as to the damages claims because the right at issue was not clearly established when the conduct took place.

In reaching this conclusion, the panel first determined that the relationship between the Riley plaintiffs and the School District was analogous to those between the government and a government contractor and that the character of the services provided by the Riley plaintiffs justified the application of the framework established in Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968). Applying the two-step burden-shifting approach for government contractors alleging retaliation, the panel held that the plaintiffs had established a prima facie case of retaliation against the School defendants that could survive summary judgment. The panel held that there was no dispute that Riley engaged in expressive conduct, that some of the School defendants took an adverse action against Riley's Farm that caused it to lose a valuable government benefit and that those defendants were motivated to cancel the business relationship because of Riley's expressive conduct. The panel also held that there was sufficient evidence that the Board members had the requisite mental state to be liable for damages for the ongoing constitutional violation.

Because the Riley plaintiffs had carried their burden of making a prima facie case of retaliation, the burden shifted to the School defendants. The panel held that taking the evidence in the light most favorable to the Riley plaintiffs, the School defendants failed to establish that the School District's asserted interests in preventing disruption to their operations and curricular design because of parental complaints were so substantial that they outweighed Riley's free speech interests as a matter of law.

The panel rejected the School defendants' argument that they could not be held liable for unconstitutional retaliation because their actions were protected government speech. Even assuming that the selection of a field trip venue was protected government speech, the pedagogical concerns underlying the government-speech doctrine did not exist here because Riley was not speaking for, or on behalf of, the School District.

The panel held that although there existed a genuine issue of material fact as to whether the School defendants violated the Riley plaintiffs' First Amendment rights, there was no case that placed the constitutional inquiry here beyond debate and therefore it was not clearly established that the School defendants' reaction to parental complaints and media attention arising from Riley's tweets was unconstitutional. Rather, the School defendants had a heightened interest in taking action in response to the Riley plaintiffs' speech to prevent interruption to the school's operations. The record contained undisputed facts that Riley's tweets gave rise to actual parent and community complaints and media attention. The School defendants were therefore entitled to qualified immunity on the damages claim.

The panel held that the district court erred in dismissing the claims for injunctive relief which sought to enjoin the School District's alleged ongoing policy barring future field trips to Riley's Farm. The panel held that the testimony of the School District's superintendent was sufficient to create a genuine issue of material fact as to whether the Riley plaintiffs continue to suffer from an ongoing constitutional violation.


The opinion filed on March 17, 2022, and published at 29 F.4th 484 (9th Cir. 2022), is amended by the opinion filed concurrently with this order.

With these amendments, appellants' petition for rehearing, filed March 31, 2022, is DENIED. The petition for rehearing en banc was circulated to the judges of the court, and no judge requested a vote for en banc consideration. The petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or rehearing en banc will be entertained.



This case involves a school district that severed its longstanding business relationship with a company that provides field trip venues for public school children. The school district took this step after the principal shareholder of the field trip vendor made controversial tweets on his personal social media account, and some parents complained. In response to the school district's adverse action, the field trip vendor and its shareholder sued the responsible public school officials under 42 U.S.C. § 1983 for violating their First Amendment rights. We conclude that there is a genuine issue of material fact whether the plaintiffs' First Amendment rights have been violated, but the school officials are entitled to qualified immunity as to the plaintiffs' damages claims because the right at issue was not clearly established when the conduct took place. However, the district court erred in granting summary judgment to the school officials on the plaintiffs' claim for injunctive relief, because there is a genuine issue of material fact whether the school officials are maintaining an unconstitutional, retaliatory policy barring future patronage to the vendor.


James Patrick Riley is one of the principal shareholders of Riley's American Heritage Farms ("Riley's Farm").[1]Riley's Farm provides historical reenactments of events such as the American Revolution, the Civil War, and American colonial farm life for students on school field trips, and also hosts events like apple picking. During each year between 2001 and 2017, one or more schools within the Claremont Unified School District (referred to as CUSD or the "School District") booked and attended a field trip to Riley's Farm. The School District is governed by a publicly-elected, five-member Board of Education (the "Board"), and is managed on a day-to-day basis by its administrators.

As of August 2018, Riley and Riley's Farm maintained separate social media accounts, including accounts on Twitter. Riley used his personal Twitter account to comment on a range of controversial topics, including President Donald Trump's alleged relationship with Stormy Daniels, President Barack Obama's production deal with Netflix, Senator Elizabeth Warren's heritage, and Riley's opinions on gender identity. Some of Riley's controversial tweets included the following:

• When #Elizabeth Warren comes on @MSNBC, it's therapeutic to issue a very earthy Cherokee war chant ('hey-ah-hey-ah..etc) I'm doing it right now. I'm running around; I'm treating the various desk lamps like mesquite campfires. You can probably hear it in Oklahoma. #ScotusPick
• A friend saw an ice sculpture of Kirsten Gillibrand at a Democratic fundraiser. She actually looked more human that way - a bit more color in her cheeks.
• So I'm planning a high school reunion and I just realized we may have been the last generation born with only two genders.
• #NameThatObamaNetflixShow "Missing ISIS" Heartwarming story of a former Jihad fighter, now readjusting to life as a BLM protester.

Riley's tweets did not appear on any of Riley's Farm's social media accounts or web site. Nor did Riley's tweets...

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