Riley's Am. Heritage Farms, Corp. v. Elsasser

Citation32 F.4th 707
Decision Date17 March 2022
Docket Number20-55999
Parties RILEY'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)

Thomas J. Eastmond (argued) and David A. Robinson, Holland & 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 & Dwork, LLP, Carlsbad, California, for Defendants-Appellees.

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

Order; Opinion by Judge Ikuta


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.


IKUTA, Circuit Judge:

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 #ElizabethWarren 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 reference Riley's Farm or anything related to the School District or school field trips in general.

In August 2018, a parent of a kindergarten student at Chaparral Elementary School (one of the schools within the School District) sent an email to her child's teacher, Michelle Wayson, regarding an upcoming field trip at Riley's Farm. The parent's email included screen shots of Riley's tweets, and stated "I do NOT feel comfortable with my son patronizing an establishment whose owner (and/or family/employees) might be inclined to direct bigoted opinions towards my child or other vulnerable children in the group." Wayson forwarded the parent's email to the school principal, Ann O'Connor. Because all four of Chaparral's kindergarten classes were scheduled to attend an apple-picking tour at Riley's Farm in October 2018, O'Connor asked Wayson to discuss the parent's concern with the other three Chaparral kindergarten teachers and to determine whether alternative field trip venues would be more appropriate. Brenda Hamlett, the principal of Sumner Danbury Elementary School (also in the School District), reported that multiple parents subsequently asked her to excuse their children from attending field trips at Riley's Farm or choose an alternative field trip venue.

Around the same time, Lee Kane, a parent whose children had attended schools in CUSD, saw a Facebook post discussing Riley's tweets. In September 2018, Kane sent a copy of the Facebook post to David Nemer, one of the School District's board members, and expressed concern about the School District sending field trips to Riley's Farm "in light of a public controversy surrounding tweets" made by Riley.2

The same day, Nemer forwarded Kane's complaint to James Elsasser, the superintendent of the School District. Nemer told Elsasser: "There is concern on Facebook about some extremely inappropriate and unacceptable tweets by the owner of an establishment in Oak Glen that has apparently been visited by CUSD field trips." In that same email, Nemer further described Riley's tweets as "obnoxious" and "bigoted." Nemer followed up his email to Elsasser with a second email stating, "I think many of our stakeholders would be uncomfortable with these tweets."3

Two days later, Elsasser and School District administrators met to discuss parent concerns regarding field trips to Riley's Farm. Elsasser asked the administrators to speak with the teachers at their schools to determine whether any of them wanted to continue patronizing Riley's Farm. O'Connor then emailed the Chaparral kindergarten teachers and instructed them to "find another alternative" for the field trip that would not give rise to parental complaints.

The following day, the Redlands Daily Facts (a local newspaper) published a news article about Riley and his Twitter posts.

The article was titled: "These tweets sparked social media outcry against owner of Riley's Farm in Oak Glen." The article noted that some community members were disgusted by Riley's alleged white supremacist views espoused in his tweets, and that Riley's tweets had been shared over 1,300 times on Twitter.

Because no administrator, teacher, or staff member expressed a desire to continue going to Riley's Farm, Julie Olesniewicz, the Assistant Superintendent for Educational Services, sent an email to the principals of each of the School District's elementary schools "asking that no CUSD school attend Riley's Farm field trips" and offering alternative options for the field trips. The parties dispute whether Olesniewicz's guidance is still in place.4

After Olesniewicz sent her email to the elementary school principals, Nemer sent an email to Elsasser asking, "Is there any followup information I can convey about the Rileys Farm issue?" Elsasser responded by email that "[a]ll schools that were scheduled to go to Riley's Farm that are operated by John Riley have been canceled."

About a week later, on September 24, 2018, counsel for Riley's Farm (Thomas Eastmond) sent a letter to Elsasser and the individual board members, alleging that the School District had issued a policy forbidding teachers from taking field trips to Riley's Farm in retaliation for Riley's political posts. Alleging that this policy violated Riley's Farm's First Amendment rights, Eastmond's letter proposed terms of settlement. In a letter dated October 2, 2018, the District's general counsel denied that the District had issued a policy forbidding teachers from taking field trips to Riley's Farm. She asserted that "[a]fter the District became aware of racist, sexist and homophobic statements published in social media by the proprietor of Riley's Farm, individual schools decided whether to sponsor field trips to Riley's Farm during the 2018-2019 school year." The general counsel also stated that "nothing in the First Amendment obligates the District to continue doing business with any individual or organization that makes public statements which are inimical to the District's educational mission." Therefore, the general counsel rejected Eastmond's settlement proposals.5

On October 12, 2018, Riley and Riley's Farm filed an action for violation of their civil rights under 42 U.S.C. § 1983, alleging that the School District, individual members of the school board (Steven Llanusa, Hilary LaConte, Beth Bingham, Nancy Treser Osgood, and David Nemer), and three...

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