Villegas v. City of Gilroy

• Decision Date: 30 April 2007
• Docket Number: No. 05-15725.,05-15725.
• Citation: 484 F.3d 1136
• Parties: George VILLEGAS, Bob Poelker, Marcelo Orta, and Don Derosiers, Plaintiffs-Appellants, v. CITY OF GILROY, and Gilroy Garlic Festival Association, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

484 F.3d 1136

George VILLEGAS, Bob Poelker, Marcelo Orta, and Don Derosiers, Plaintiffs-Appellants, v. CITY OF GILROY, and Gilroy Garlic Festival Association, Inc., Defendants-Appellees.

No. 05-15725.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 16, 2007.

April 30, 2007.

Randolph M. Hammock, Canoga Park, CA, for the plaintiffs-appellants.

Mark L. Strombotne and Bronwen E. Lacey, San Jose, CA, for the defendant-appellee City of Gilroy.

Gregory C. Simonian and G. Martin Velez, Daly City, CA, for the defendant-appellee Gilroy Garlic Festival Association.

Appeal from the United States District Court for the Northern District of California; James Ware, District Judge, Presiding. D.C. No. CV-01-20720-JW.

Before RONALD M. GOULD and JOHNNIE B. RAWLINSON, Circuit Judges, and ALFRED V. COVELLO,^* District Judge.

COVELLO, District Judge.

This is an action for damages alleging violations of the plaintiffs' First Amendment constitutional rights incident to their exclusion from a garlic festival. It is brought pursuant to 42 U.S.C. section 1983,¹ and article I, section 2 of the state of California's constitution and California's civil rights act, section 51 et seq. of the California Civil code.² George Villegas and others, members of the Top Hatters Motorcycle Club (hereinafter "plaintiffs"), appeal the district court's grants of summary judgment in favor of the City of Gilroy ("City") and the Gilroy Garlic Festival Association ("GGFA"), on the plaintiffs' claims brought pursuant to 42 U.S.C. section 1983.

The issues presented are: 1) whether the act of wearing vests adorned with a common insignia is sufficient to establish a violation of the First Amendment's right to freedom of expression; and 2) whether the plaintiffs here otherwise engaged in sufficient expressive activity to establish a violation of the First Amendment's right to freedom of association.³ For the reasons hereinafter set forth, we affirm the decision of the district court.

FACTS

Examination of the complaint, pleadings, exhibits accompanying the motion for summary judgment, and the responses thereto, and the testimony submitted to the district court discloses the following undisputed material facts.

On July 28, 2000, the Gilroy Garlic Festival (hereinafter "festival") opened. On July 30, 2000, the plaintiffs, members of a motorcycle club, paid admission and entered the festival grounds. The festival promoted the vegetable garlic and offered many varieties of food and entertainment in a family-friendly atmosphere. The GGFA put on the festival from July 28, 2000, through July 30, 2000, at a public park in the city of Gilroy, California. At the time they entered the festival, the plaintiffs were wearing identical vests adorned with patches. The patches on the back of the vests depicted a skull with wings and a top hat. The vests also included the words "Top Hatters" above the top hat, skull and wings and the word "Hollister" below.⁴ The festival promoters had adopted an unwritten festival dress code which provided that persons attending the festival not be permitted to wear gang colors or other demonstrative insignia, including motorcycle club insignia. Upon noticing the plaintiffs' similar dress, Donald Kludt, an off-duty Gilroy police officer and chair of security for the festival directed another Gilroy police officer, D. Bergman, to escort the plaintiffs back to the gate. Bergman asked the plaintiffs to follow her to the gate. Once the plaintiffs were at the gate, Kludt explained to them the GGFA dress code policy and asked them to remove their vests. The plaintiffs refused. Kludt then directed the plaintiffs to leave the festival. After festival employees refunded their admission, the plaintiffs left.

The stated purpose of the Top Hatters Motorcycle Club was to ride motorcycles and raise money for charities. The club's articles of incorporation further state that its charitable purposes "are to promote good will and understanding among disparate community groups and to raise and distribute funds to other charitable organizations or to needy individuals." When asked, during his deposition, whether the Top Hatters advocated any political, religious, or other viewpoints, appellant Villegas answered "no." Further, with respect to the insignia on the back of their vests, appellant Villegas testified that to him the skull represented "[t]he belief [that] underneath our skin all of us are alike." Villegas further stated that the wings represented freedom and the top hat represented the members of the original Top Hatters Motorcycle Club. Appellant Donald Derosiers stated that to him the skull represented death, the wings represented freedom and the top hat represented those original members of the Top Hatters who are still living. He denied that the Top Hatters attributed any particular meaning to the insignia. To appellant Marcelo Orta, only the top hat had any meaning.⁵ Finally, appellant Bob Poelker stated that the insignia signified "whatever you want to interpret it as."

On July 30, 2001, the plaintiffs filed the complaint in this case. On April 24, 2002, and April 29, 2002, respectively, the City and the GGFA filed motions to dismiss. On August 29, 2002, the district court granted the motions to dismiss. On September 20, 2002, the plaintiffs appealed the district court's dismissal. On March 11, 2004, this court reversed and remanded the case to the district court.⁶ On September 13, 2004, the City and GGFA filed motions for summary judgment. On April 5, 2005, the district court granted those motions and rendered judgment in favor of the defendants. On April 18, 2005, the plaintiffs filed a notice of appeal in this case.

STANDARD OF REVIEW

This court reviews a district court's grant of summary judgment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197(9th Cir.1996). "The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether genuine issues of material fact exist and whether the district court correctly applied the relevant substantive law." Id.

This court must determine whether: 1) a violation of a right secured by the Constitution and laws of the United States has occurred; and 2) the person alleged to have committed the violation acted under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). In assessing a section 1983 claim on summary judgment, the court must determine whether "[t]aken in the light most favorable to the party asserting the injury ... the facts alleged show the [defendants'] conduct violated a constitutional right[.]" Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

DISCUSSION

I. Freedom of Expression

With respect to the constitutional element of their section 1983 claims, the plaintiffs first allege a violation of their First Amendment right to freedom of expression. The plaintiffs argue that the district court erred when it concluded that the plaintiffs' vests and insignia did not constitute expressive conduct worthy of First Amendment protection. The City and GGFA respond that the plaintiffs' act of wearing their vests to the festival was not sufficient expressive conduct to support a violation of the First Amendment. The district court found that it was unclear what message the plaintiffs intended to convey by wearing their vests, and concluded that no constitutional violation had occurred.

The First Amendment specifically forbids the abridgement of speech. U.S. Const. amend. I. The United States Supreme Court has, however, recognized that certain conduct that is "imbued with elements of communication," Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), may also qualify for First Amendment protection. In Spence, the Supreme Court held that when determining whether conduct rises to the level of expressive conduct worthy of First Amendment protection, the court should consider whether "[a]n intent to convey a particularized message was present and [whether] the likelihood was great that the message would be understood by those who viewed it." Id. at 410-11, 94 S.Ct. 2727; see also Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). The Court further stressed the importance of the context in which the symbol is used, noting that "the context may give meaning to the symbol." Spence, 418 U.S. at 410, 94 S.Ct. 2727.

The plaintiffs cite this court's decision in Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir.2002), for the proposition that a patch on a motorcycle club member's vest constitutes expressive conduct for purposes of the First Amendment. In Sammartano, however, the court did not address the issue of whether the plaintiffs' conduct was sufficiently expressive to warrant First Amendment protection.⁷

In this case, the district court correctly applied the test in Spence and concluded that the plaintiffs' act of wearing their vests and insignia into the festival did not rise to the level of protected speech for purposes of the First Amendment. The insignia on their vests depicted a skull with wings on either side and a top hat. All of the members of the plaintiffs' motorcycle club had different interpretations of the meaning of their club insignia. As appellant Poelker stated, the insignia signified "whatever you want to interpret it as." Even amongst themselves, the plaintiffs could not agree on a common theme or message that they sought to convey by wearing their vests and insignia. There is nothing in the record tending to establish such a common message. The district court was, therefore, correct in concluding that the plaintiffs vests did not manifest an "intent to convey a particularized message." Spence, 418 U.S. at 410-11, 94 S.Ct. 2727.

In addition, there is little likelihood that any message would be understood by those viewing the plaintiffs' vests and, further, the...