O'Toole v. Superior Court

Decision Date14 June 2006
Docket NumberNo. D047230.,No. D047158.,D047158.,D047230.
Citation140 Cal.App.4th 488,44 Cal.Rptr.3d 531
CourtCalifornia Court of Appeals Court of Appeals
PartiesJonathan O'TOOLE et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; San Diego Community College District, et al., Real Parties in Interest. San Diego Community College District et al., Petitioners, The Superior Court of San Diego County, Respondent; Jonathan O'Toole et al., Real Parties in Interest.

Law Offices of Peter D. Lepiscopo, Peter D. Lepiscopo, San Diego, and James M. Griffiths, for Petitioners in No. D047158 and Real Parties in Interest in No. D047230.

No appearance for Respondent.

Stutz Artiano Shinoff & Holtz, Ray J. Artiano and Ljubisa Kostic, San Diego, for Petitioners in D047230 and Real Parties in Interest in No. D047158.

HALLER, Acting P.J Plaintiffs1 brought an action against the San Diego Community College District (District) and several law enforcement officers employed by the District,2 alleging defendants violated plaintiffs' constitutional rights of free speech and assembly by requiring them to obtain a permit before speaking and distributing literature concerning their opposition to abortion. Plaintiffs requested declaratory relief, and sought monetary damages under the Bane Act (Civ.Code, § 52.1) and under the statute imposing governmental liability for breach of a mandatory duty (Gov.Code,3 § 815.6). One of the plaintiffs (O'Toole) also asserted a false arrest claim. The parties filed cross-summary judgment motions. After the court denied these motions, plaintiffs and defendants each challenged the order by petitioning for a writ of mandate in this court. We consolidated these petitions, and issued an order to show cause.

We conclude the trial court properly denied plaintiffs' summary judgment motion, but should have granted defendants' motion. The undisputed facts show defendants are entitled to statutory immunity under section 820.6, which provides a public employee is not liable for enforcing an allegedly unconstitutional enactment if the "employee acts in good faith, without malice, and under the apparent authority of [the] enactment. . . ." O'Toole's false arrest claim is also unsupported because the undisputed facts show the officers had reasonable cause to arrest O'Toole. Further, as plaintiffs concede, their declaratory relief claim is moot because the District no longer requires an individual to obtain a permit before engaging in free speech activities on campus.


Undisputed Facts

Plaintiffs are members of "Survivors of the Abortion Holocaust," a "pro-life" association. At about 11:00 a.m. on February 25, 2003, plaintiffs came to Mesa College intending to educate the public, distribute literature, and display posters relating to their opposition to abortion. Mesa College is one of three colleges within the District. None of the plaintiffs were students at the college.

Plaintiffs arrived at the campus in a vehicle driven by plaintiff Daniel McCullough. After dropping off the other plaintiffs at the campus entrance, McCullough went to park his vehicle in the campus parking lot. The group then walked to the Mesa College cafeteria. Because it was raining heavily, numerous students were gathered underneath the covered walkway near the cafeteria. Several nearby tables contained literature relating to student clubs and organizations.

Plaintiffs set up large graphic posters in front of the cafeteria, and began distributing anti-abortion literature. Many students became upset and began arguing with plaintiffs. Cafeteria workers were concerned and called the campus police. The first responding officer, Lieutenant Jack Doherty, observed that two of the plaintiffs were displaying a large poster of a bloody, dismembered fetus. One of the plaintiffs was engaged in a very loud, heated debate with one or two other persons who appeared to be students. Approximately 20 students were gathered near the plaintiffs who were displaying the poster.

Lieutenant Doherty told the group leader, O'Toole, that Mesa College required a special permit before a person could display posters and hand out literature on campus. O'Toole said he did not have a permit, and was unaware that the group needed a permit. Lieutenant Doherty responded that plaintiffs could obtain a permit at the Student Affairs office. Plaintiffs (except for McCullough who was still parking the vehicle) then went to the Student Affairs office. At the time, Mesa College policy required campus police officers to direct any person distributing material without the necessary permit to the Student Affairs office. The defendant officers were aware of this policy and of the permit requirement.

Several other police officers arrived at the scene, including Sergeant Vasquez, Officer Olson, and Olson's trainee, Officer Pabelico. The students complained to Sergeant Vasquez about plaintiffs' conduct. Sergeant Vasquez believed some of the students were so upset there was a "real possibility" they might attempt to tear plaintiffs' posters or assault one of the plaintiffs. Officers Olson and Pabelico then went to the Student Affairs office, where they found numerous "angry" and "upset" students.

Inside the Student Affairs office, Kathy Fennessy, an office staff worker, told plaintiffs they were required to complete an application for a permit and submit their literature for review, and the application could take 10 working days to process. Fennessy said the review could take a shorter time, but Mesa College rules permitted the college to take up to 10 days. Plaintiffs asserted that their rights were being violated and that they had the right to "do whatever they wanted to on a campus." Fennessy responded that the college had the right to impose reasonable time, place, and manner restrictions on free speech rights. O'Toole took the application outside the office, and a few minutes later turned in the completed application.

Meanwhile, Officer Pabelico entered the Student Affairs office and asked Fennessy for an update on the permit situation. Fennessy responded that plaintiffs did not have a permit and that the permit would not issue at that time. Fennessy said the plaintiffs needed the proper paperwork and advised that it would take up to 10 business days to obtain the approval. Fennessy then requested Officers Olson and Pabelico to ask plaintiffs to leave the campus.

To enforce Fennessy's request, Officer Pabelico asked the plaintiffs (except for McCullough who had not yet come on the campus) to leave the campus and referred plaintiffs to Penal Code section 626.6, which permits campus personnel to direct a nonstudent to leave the campus if it appears the individual "is committing any act likely to interfere with the peaceful conduct of the activities of the campus" or "has entered the campus . . . for the purpose of committing any such act." (Pen. Code, § 626.6, subd. (a).) Under the express language of Penal Code section 626.6, the officers also instructed plaintiffs not to return for seven days or they could be arrested for reentering the campus. (Pen.Code, § 626.6, subd. (c).) But Officer Pabelico also told plaintiffs they were welcome to return to campus to leaflet and display posters once they obtained a permit.

In response, O'Toole directed the other members of his group to leave the campus, which they did. O'Toole then took his poster and written materials and walked toward the cafeteria, intending to continue his anti-abortion activities at a designated free speech area. Officers Olson and Pabelico told O'Toole to stop and that if he did not comply, the officers would arrest him under Penal Code section 148 for delaying a police officer in the performance of his duties. O'Toole did not stop. When O'Toole reached an area near the cafeteria, he held a large poster and began handing out literature. The officers believed this activity was improper because O'Toole did not have the required permit.

Officers Olson and Pabelico asked O'Toole to stop this activity several times, and each time O'Toole refused. The officers told O'Toole he needed an approved permit before he could demonstrate. O'Toole responded that he was exercising his freedom of speech. The officers admonished him again, and told him he had a "`choice to leave.'" When O'Toole continued his activities, Officer Olson took O'Toole's posters and literature from him and placed O'Toole's hands behind his back. Officer Abutin assisted Officer Olson, and handcuffed O'Toole. Officer Pabelico then placed O'Toole under arrest for violating Penal Code section 148, believing that O'Toole was "resisting and obstructing [the officers'] attempt to enforce the permit requirement; delaying [the officers] by making [them] pursue O'Toole; and refusing to comply with officer Olson's directive that O'Toole cease the further display of a large poster and leafleting without a permit." (Capitalization omitted.)

Officers Pabelico and Olson then took O'Toole to the campus police station. Once there, the officers prepared a notice to appear which identified violations of Penal Code sections 148, subdivision (a)(1) and 626.6. During this time, Officer Pabelico showed O'Toole a copy of Penal Code section 626.6, which permits college officials to require a nonstudent to leave the campus if it "reasonably appears" the person "is likely to interfere with the peaceful conduct of the activities of the campus. . . ."4 O'Toole read the code section and then directed the officers' attention to subdivision (b), which states "[t]he provisions of this section shall not be utilized to impinge upon the lawful exercise of constitutionally protected rights of freedom of speech or assembly." (Pen.Code, § 626.6, subd. (b).) The officers read this portion of the code section, but did not believe it applied to the situation because O'Toole had not obtained the required permit and because O'Toole had created a disturbance and...

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