Rosebrock v. Beiter

• Decision Date: 26 May 2011
• Docket Number: No. CV 10–01878 SJO (SSx).,CV 10–01878 SJO (SSx).
• Citation: 788 F.Supp.2d 1127
• Parties: Robert ROSEBROCK, an individual, Plaintiff,v.Donna BEITER, Director of the Veterans Administration Greater Los Angeles Healthcare System, in her official capacity; Ronald Mathis, Chief of Police of the Veterans Administration Greater Los Angeles Healthcare System, in his official capacity, Defendants.
• Court: U.S. District Court — Central District of California

788 F.Supp.2d 1127

Robert ROSEBROCK, an individual, Plaintiff,

v.Donna BEITER, Director of the Veterans Administration Greater Los Angeles Healthcare System, in her official capacity; Ronald Mathis, Chief of Police of the Veterans Administration Greater Los Angeles Healthcare System, in his official capacity, Defendants.

No. CV 10–01878 SJO (SSx).

United States District Court, C.D. California.

May 26, 2011.

Hector O. Villagra, Jessica G. Price, Peter J. Eliasberg, ACLU Foundation of Southern California, Silvia Araxie Babikian, American Civil Liberties, Union of Southern California, Los Angeles, CA, for Plaintiff.Indira J. Cameron–Banks, Office of U.S. Attorney, Los Angeles, CA, for Defendants.

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Docket No. 32]; DENYING IN PART AND GRANTING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [Docket No. 37]

S. JAMES OTERO, District Judge.

This matter is before the Court on Defendants Donna Beiter and Ronald Mathis (collectively, “Defendants”) and Plaintiff Robert Rosebrock's (“Plaintiff”) separate Motions for Summary Judgment, filed on October 18, 2010 and October 25, 2010, respectively. (Docket Nos. 32, 37.) Plaintiff submitted an Opposition to Defendants' Motion on November 1, 2010.¹ Defendants submitted an Opposition to Plaintiff's Motion on the same date. The parties filed their respective Replies on November 8, 2010.² Both of the parties filed Evidentiary Objections. Defendants also submitted a Statement of Genuine Issues of Disputed Facts, while Plaintiff declined to do so.³ The Court found these matters suitable for disposition without oral argument and vacated the hearings set for November 15, 2010. See Fed.R.Civ.P. 78(b). Plaintiff submitted a Supplement to his Motion on December 20, 2010. (Docket No. 55.) For the following reasons, Defendants' and Plaintiff's Motions for Summary Judgment are GRANTED IN PART AND DENIED IN PART.

I. FACTUAL AND PROCEDURAL BACKGROUND

The United States Department of Veterans Affairs (“VA”) is a federal agency charged with administering “the laws providing benefits and other services to veterans and the dependents and the beneficiaries of veterans.” 38 U.S.C. § 301 (2006); ( see also Decl. of Lynn Carrier (“Carrier Decl.”) in Supp. of Defs.' Mot. ¶ 2.) The VA Greater Los Angeles Healthcare System (the “VAGLA”) is one of the largest and most complex VA health care systems in the country. (Carrier Decl. ¶ 2.) Its mission is to provide high quality health care services to eligible veterans throughout the Los Angeles region. ( Id.) The VAGLA provides the most comprehensive homelessness program within the agency to address the needs of veterans, including a domiciliary that houses approximately 250 veterans. (Decl. of Ralph D. Tillman in Supp. of Defs.' Reply (“Tillman Decl.”) ¶ 4.) While the VAGLA has numerous locations throughout the region, its West Los Angeles campus (the “VAGLA Campus”) is the only location where complex medical, surgical, and psychiatric care is offered. (Carrier Decl. ¶ 2.) The VAGLA Campus cares and treats homeless veterans, veterans who have recently returned from combat, and those suffering serious psychiatric conditions such as post traumatic stress disorder. (Tillman Decl. ¶ 3.) Pursuant to sharing agreements, non-healthcare related events are held on the VAGLA Campus on certain occasions, but revenues from those events are deposited directly into funds that maintain and improve the property. ( Id. ¶ 4.)

The VAGLA Campus contains a large grass lawn, called the “Great Lawn.” ( See Rosebrock Decl. ¶ 3.) The Great Lawn has a perimeter fence around it (the “Perimeter Fence”). ( Id.; Carrier Decl. ¶ 5.) A gate that leads into the Great Lawn (the “Gate”) is located at the intersection of San Vicente and Wilshire Boulevards in Los Angeles. (Rosebrock Decl. ¶ 3; Carrier Decl. ¶ 5.) Directly in front of the Gate is approximately 50–75 feet of VA property separated from the public sidewalk by low, widely spaced concrete barriers (the “Entrance Area”). (Carrier Decl. ¶ 5; Rosebrock Decl. ¶ 3.) The Entrance Area is also demarcated from the public sidewalk by color; it is a darker gray. (Rosebrock Decl. Ex. 1; Carrier Decl. Ex. 1.)

Plaintiff is a 68–year–old Vietnam War-era veteran. (Rosebrock Decl. ¶ 2.) Age has neither mellowed him nor dissipated his passion. He and a number of fellow veterans have been demonstrating in the Entrance Area and the public sidewalk every Sunday since March 9, 2008. ( Id.) Plaintiff protests the VA's refusal to develop the Great Lawn into a shelter for homeless veterans or to use the land for the benefit of veterans. ( Id. ¶ 5.) Plaintiff objects to what he perceives to be a pattern of transferring portions of the VAGLA Campus to other entities for use unrelated to the care and shelter of veterans. ( Id. ¶¶ 6, 7.) The protests last on average around three to four hours. ( Id. ¶ 8.)

On March 9, 2008, Plaintiff and his fellow protestors began their regular Sunday demonstrations. (Rosebrock Decl. ¶¶ 5, 8.) During Plaintiff's first demonstration, Sergeant Nathaniel Webb (“Webb”), a VA police officer, expressly stated to Plaintiff that “his group would be prohibited from hanging any signs, placards or flags from the VA fence or on VA property.” (Dep. Nathaniel Webb (“Webb Dep.”) 7:5–8, 53:14–18, 54:12–15, 55:25–56:6.) Webb, however, explained that Plaintiff could hang “flags of the United States of America or prisoner of war.” ( Id. at 53:18–19.) Plaintiff responded that he understood and would comply. ( Id. at 53:22–23.) Prior to the demonstration, Jim Duvall (“Duvall”), a Senior Manager for the Public Affairs Department of the VAGLA, had communicated to Webb that Plaintiff would be protesting. ( Id. at 55:5–10.) Duvall instructed Webb to let Plaintiff “be on that area of the VA property that was designated at the [intersection of] Wilshire and San Vicente [Boulevards], but ... [to] prohibit[ ] [Plaintiff] from hanging any signs or placards on VA fence line.” ( Id. at 57:4–9.) “The only exception[s] ... [to the prohibition were] the flag of the United States of America and the POW flag.” ( Id. at 57:9–11.)

During their subsequent protests, Plaintiff and other demonstrators hung the United States flag, union up, and P.O.W./M.I.A. banners on the Gate and Perimeter Fence. (Rosebrock Decl. ¶ 10.) They displayed the American flag to show patriotism, even while disagreeing with the VAGLA. ( Id. ¶ 9.) Plaintiff also hung a “Support Our Troops” banner and a Vietnam Unit flag on certain occasions. ( Id. ¶¶ 11–12.) On some Sundays, the demonstrators hung as many as 30 United States flags on the fences surrounding the Great Lawn. ( Id. ¶ 19, Ex. 5.) The protestors also held the United States flag, union down, during the protests to send out a “distress call” and to bring attention to the perceived gross injustice of the VAGLA's land use policy. (Decl. of Indira J. Cameron–Banks in Supp. of Defs.' Opp'n (“Cameron–Banks Decl.”) Ex. 10.) From March 9, 2008, to November 30, 2008, the VA police made no contact with the demonstrators to express disapproval or to prohibit the display of the United States flag or the P.O.W./M.I.A. flag on the Perimeter Fence. (Rosebrock Decl. ¶ 10.)

On or about November 30, 2008, Webb approached Plaintiff during a demonstration and ordered him to remove a “Support Our Troops” banner and a Vietnam Unit flag. (Rosebrock ¶ 10; Webb Dep. 67:4–15.) Webb informed Plaintiff that he was in violation of 38 C.F.R. section 1.218(b)(22) ⁴ (“ section 1.218”) for hanging the banner and flag on VA property. (Webb Dep. 67:4–15.) Webb permitted Plaintiff to display the United States flag, right-side up, and the P.O.W./M.I.A. flag on the Perimeter Fence. (Rosebrock ¶ 10.) Plaintiff and his fellow demonstrators removed the Support Our Troops banner and the Vietnam Unit flag. ( Id.)

After the November 30, 2008 incident, Plaintiff sent a letter to the VA, reporting that he and his demonstrators believed Webb harassed them and suppressed their speech. (Carrier Decl. Ex. 2.) As a follow up to that letter, Bob Handy (“Handy”)—a veteran, chair of the Veterans Caucus for the California Democratic Party, and a fellow demonstrator—e-mailed the VA Chief of Staff Colonel Thomas Bowman to request that he be provided:

ALL GOVERNMENT, [sic] CODES OR OTHER LAWS THAT REGULATE PUBLIC DISPLAYS ON OR NEARS [sic] VETERANS['] HOMES, additionally those codes, rules or other restrictions concerning the requirements of temporar[il]y attaching signs, banners or other material specifically on the fencing, walls, or other barriers to veterans['] homes.

( Id.) After several e-mail communications back and forth, including an e-mail sent by Handy to the Secretary of Veterans' Affairs Erick Shinseki, Handy received an answer from Lynn Carrier (“Carrier”), Associate Director of the VAGLA. ( Id.) On February 6, 2009, Carrier pointed Handy to section 1.218 and explained that, “[c]onsistent with [the] regulation, [the VAGLA does] not allow displays of placards or other material on the perimeter fencing of the property.” ( Id.)

On June 14, 2009, Plaintiff began to hang the United States flag with the union down on the Perimeter Fence. (Rosebrock Decl. ¶ 14.) Plaintiff asserts that he grew increasingly frustrated with the VAGLA for not developing the Great Lawn for the shelter and care of homeless veterans. ( Id.) He hung the American flag inverted to express a different message, not of patriotism or support for military veterans, but as a distress call. ( Id. ¶ 15.) Defendants assert that several complaints were lodged with the VAGLA by patients regarding Plaintiff's display of an inverted American flag on the Perimeter Fence. (Carrier Decl. ¶ 12.) On two separate occasions, Plaintiff was threatened with physical violence. ( Id., Exs. 3–4.) Then, on June 26, 2009, Carrier sent an e-mail to Plaintiff to inform him that he “may not attach the American flag, upside down, on...