Sammartano v. First Judicial District Court

• Decision Date: 26 August 2002
• Docket Number: No. 01-16685.,01-16685.
• Citation: 303 F.3d 959
• Parties: Franklin SAMMARTANO; Steven Dominguez; Scot Banks; Philip Muhilly; Glenn Gurr; Charles McKenna; Dennis Owen; Richard Eckhardt; Thomas Dunlap; Craig McCauley; Steven Bilach; Ronald James; John O'Sullivan, Plaintiffs-Appellants, v. FIRST JUDICIAL DISTRICT COURT, IN and FOR the COUNTY OF CARSON CITY; Justice Court of Carson City Township; Noel Waters, Carson City District Attorney; Rod Bannister; Carson City County; Robert Stutsman; William Hickey; Jeffrey Snyder, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

303 F.3d 959

Franklin SAMMARTANO; Steven Dominguez; Scot Banks; Philip Muhilly; Glenn Gurr; Charles McKenna; Dennis Owen; Richard Eckhardt; Thomas Dunlap; Craig McCauley; Steven Bilach; Ronald James; John O'Sullivan, Plaintiffs-Appellants, v. FIRST JUDICIAL DISTRICT COURT, IN and FOR the COUNTY OF CARSON CITY; Justice Court of Carson City Township; Noel Waters, Carson City District Attorney; Rod Bannister; Carson City County; Robert Stutsman; William Hickey; Jeffrey Snyder, Defendants-Appellees.

No. 01-16685.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2002.

Filed August 26, 2002.

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Donald York Evans, Reno, NV, for the plaintiffs-appellants.

Andrea H. Nichols, Attorney General's Office, Carson City, NV, and Melanie Bruketta, Carson City District Attorney's Office, Carson City, NV, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CV-01-00247-PMP.

Before: THOMPSON, FLETCHER and BERZON, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.

Appellants in this action are individuals who were denied entrance to a Carson City, Nevada government building after refusing to remove clothing bearing symbols of motorcycle organizations. They appeal the district court's order denying their request for a preliminary injunction in their 42 U.S.C. § 1983 suit against Appellees, the First Judicial Court, the County of Carson City, and related agencies and individuals. Appellants' underlying suit claims that a court policy banning individuals who are wearing such clothing from two floors of the government building violates the First Amendment. Because Appellants have demonstrated both probable success on the merits and irreparable harm, we reverse.

I. Background

The relevant facts are not in dispute. This suit arises out of three related incidents at the Carson City Public Safety Complex ("the Complex"), a three-story building. On the first floor of the Complex are the marriage license office, the recorder's office, and the office that receives payments for municipal court fines. Visitors do not have to pass through security to gain access to this floor. On the second floor are two courtrooms for the Justice Court of Carson City Township, the clerk's office for that court, the chambers of two justices of the peace, the office of the misdemeanor probation officer, the office of the coordinator for volunteer services, the office of the Advocate to End Domestic Violence, and the office of the Carson City District Attorney. On the third floor are two courtrooms for the First Judicial District Court of the State of Nevada, the clerk's office, and the chambers of two judges of that court. In order to gain access to the second and third floors, members of the public must pass through a security station and metal detector in the lobby of the first floor.

The first of the three incidents occurred on March 9, 2001, when Appellant Steven Dominguez went to the Complex for a summoned court appearance arising out of a traffic citation. His friend, Appellant Scot Banks, accompanied him. Both men are members of The Branded Few motorcycle club, and both were wearing leather motorcycle clothing with patches identifying them as members of the club. When they tried to pass through the security station, security personnel asked them to remove their jackets, which they refused to do. Security personnel contacted the Carson City Sheriff's Department, and the responding deputy sheriff told Dominguez and Banks that they could remove their jackets and go to the second floor, or they could leave the building. When they refused to do either, they were arrested and charged with criminal trespassing. Upon their release, they were ordered to return to the court on March 26, 2001 to be arraigned on the trespassing charges.

The second incident occurred on March 26, when ten other individuals, also Appellants,¹ came to the Complex to support Dominguez and Banks. These Appellants wore jackets and vests bearing the logos of various motorcycle clubs, including The Branded Few, His Royal Priesthood, and Hells Angels. All ten were told that they would be denied admission unless they removed the clothing; all refused, arguing that they had a constitutional right to enter while wearing the clothing. All were charged with criminal trespass when they refused to leave. Appellees have submitted an affidavit from a security guard at the Complex, who stated that the group that gathered on March 26 "blocked the entrance and made it difficult for people to enter and exit," and that some members of the public asked to be escorted out of the building because they were afraid of the group. An affidavit from Dominguez and Banks' attorney, who was present, disputes both statements.

No written policy governing clothing at the Complex existed at the time of the March 9 and March 26 incidents. Appellees contend that security personnel were following an unwritten policy, passed on to them by the state district court judges who work in the Complex. They contend in their brief that the unwritten policy directed security personnel not to permit individuals to proceed to the second or third floor if they were wearing "clothing having symbols, markings or words indicating an affiliation with street gangs, biker or similar organizations which could be disruptive and/or intimidating." They further contend that the unwritten policy barred the "use of words, pictures, or symbols which are degrading or offensive to any ethnic, racial, social or political group."

An affidavit from a district judge with chambers in the Complex is the only evidence submitted to the federal district court by Appellees in support of these contentions. The affidavit does not mention "biker or similar organizations" or "offensive" words, pictures or symbols, and does not refer to any building-wide policy. The affidavit states, "It has been the policy in the First Judicial District Court for security personnel to ask individuals who wear colors or gang apparel to remove the clothing prior to entering the courtrooms," and that "[g]ang clothing or colors and attire is disruptive and intimidating and leads to problems inside the courthouse" (emphasis added). The affidavit mentions no previous incidents involving individuals wearing biker clothing, but states that "[i]t is not unusual for contentious parties and persons supporting the opposing sides or viewpoints to mingle in the hallway, and arguments and pushing and shoving incidents have occurred." The only specific incident mentioned in the affidavit is a pending case involving Native Americans and Latinos, about which the affidavit states only that the litigants have "been cooperative and agreed not to wear apparel or engage in demonstrations of support which increase the tensions already existing or which disrupt court proceedings."

The third incident occurred April 9, 2001, when Appellants were barred from passing through security to their scheduled arraignments on the trespassing charges unless they removed their motorcycle club clothing. Appellant Franklin Sammartano, who is not a member of a motorcycle club, also came to the Complex that day to attend the arraignments of the other Appellants. Sammartano was wearing a denim jacket bearing both a Harley Davidson logo and a small American flag on the front next to the words "Try to burn this asshole." He stated in an affidavit that he was required to remove his jacket in order to gain access to the top two floors of the Complex.

Between March 26 and April 9, a written list of five "Courthouse Rules of Conduct and Attire" (the "Rules") had been drawn up for the Complex. Appellees contend in their brief, but have offered no evidence beyond the aforementioned affidavit of the district judge, that the Rules merely memorialized the policy that had already been in existence. Three of the Rules have possible application to Appellants' behavior in this case. Rule 1 prohibits the "[u]se of words, pictures or symbols which are degrading or offensive to any ethnic, racial, social or political group." Rule 3, on which the parties and the district court have primarily focused their attention, prohibits "[c]lothing, attire or `colors' which have symbols, markings or words indicating an affiliation with street gangs, biker or similar organizations," stating that "[s]uch clothing or attire can be extremely disruptive and intimidating, especially when members of different groups are in the building at the same time." Rule 4 prohibits "words, pictures or symbols with clearly offensive meanings. If someone wants to wear a hat saying `f ... the world' he or she can do it outside."²

Soon after the third incident, Appellants filed suit under 42 U.S.C § 1983 in federal district court against the First Judicial District Court, the Justice Court of Carson City, and a number of county employees. The complaint sought damages for violations of the First and Fourteenth Amendments, a permanent injunction prohibiting the defendants from refusing to admit Appellants because of their clothing, and a declaratory judgment that the Rules are unconstitutional on their face and as applied. The same day, Appellants also filed a Motion for Preliminary Injunctive Relief, seeking to enjoin the implementation or enforcement of the Rules pending final resolution of the action in federal court. The criminal trespass charges were brought based on conduct that occurred before the Rules were drawn up, and Appellees have not asserted a defense based on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), either in the district court or this court.

After a hearing, the federal district court denied Appellants' motion for a preliminary injunction. "At this preliminary stage of these proceedings," the court wrote, "it is premature to make a final determination as to...