Villegas v. Gilroy Garlic Festival Ass'n

• Decision Date: 03 September 2008
• Docket Number: No. 05-15725.,05-15725.
• Citation: 541 F.3d 950
• Parties: George VILLEGAS; Bob Poelker; Marcelo Orta; Don Derosiers, Plaintiffs-Appellants, v. GILROY GARLIC FESTIVAL ASSOCIATION; D. Bergman, Officer; City of Gilroy, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

541 F.3d 950

George VILLEGAS; Bob Poelker; Marcelo Orta; Don Derosiers, Plaintiffs-Appellants, v. GILROY GARLIC FESTIVAL ASSOCIATION; D. Bergman, Officer; City of Gilroy, Defendants-Appellees.

No. 05-15725.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 11, 2007.

Filed September 3, 2008.

Randolph M. Hammock, Law Offices of Richard M. Lester, Canoga Park, CA, argued the cause for the plaintiffs-appellants; Allen Lichtenstein, General Counsel and Lee Rowland, Staff Attorney, ACLU, Las Vegas, NV, were on the briefs.

Mark Strombotne, Strombotne Law Firm, San Jose, CA, and Gregory C. Simonian, Clapp Moroney Bellagamba and Vucinich, Daly City, CA, argued the cause for the defendants-appellees; Bronwen Lacy, Strombotne Law Firm, San Jose, CA, G. Martin Velez, Clapp Moroney Bellagamba and Vucinich, Daly City, CA, and Valerie S. Higgins, Clapp Moroney Bellagamba and Vucinich, San Bruno, CA, were on the briefs.

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: ALEX KOZINSKI, Chief Judge, DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER, SIDNEY R. THOMAS, M. MARGARET McKEOWN, KIM McLANE WARDLAW, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, CONSUELO M. CALLAHAN, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge O'SCANNLAIN; Dissent by Judge THOMAS; Dissent by Judge GOULD.

O'SCANNLAIN, Circuit Judge:

We must decide whether guests at the Gilroy Garlic Festival can hold the City of Gilroy in California and the Gilroy Garlic Festival Association liable in a civil rights action when they are escorted from the event by a City police officer for violating the Festival's dress code.

I

George Villegas and remaining plaintiffs (hereinafter "Top Hatters"), all of whom are members of the Top Hatters Motorcycle Club, brought suit against the City of Gilroy and the Gilroy Garlic Festival Association ("GGFA") under 42 U.S.C. § 1983 for alleged violations of their civil rights arising out of events occurring at the Gilroy Garlic Festival on July 30, 2000. On that occasion they were wearing vests that included an image of a skull with wings and a top hat with the words "Top Hatters" above the top hat and the word "Hollister" written below.¹ Pursuant to an unwritten policy of the GGFA that prohibited guests from wearing "gang colors or other demonstrative insignia, including motorcycle club insignia," the Festival's chair of security, an off-duty police officer, requested an on-duty police officer to remove the Top Hatters and this litigation ensued.

The district court granted summary judgment in favor of both the City of Gilroy and the GGFA, ruling that wearing such vests was neither expressive conduct nor expressive association within the protection of the First Amendment and that in any event the GGFA was not a state actor within the meaning of section 1983. Villegas v. City of Gilroy, 363 F.Supp.2d 1207, 1208-09, 1211, 1217-19 (N.D.Cal. 2005).

On the Top Hatters' appeal, a three-judge panel affirmed, holding that the motorcycle club insignia was subject to expressive conduct analysis but that there was no First Amendment violation; it failed to reach the state action issue. See Villegas v. City of Gilroy, 484 F.3d 1136, 1140 (9th Cir.), withdrawn, 503 F.3d 974 (9th Cir.2007).

Thereafter, a majority of the circuit judges in active service ordered that this case be heard en banc pursuant to Rule 35(a) of the Federal Rules of Appellate Procedure. Villegas, 503 F.3d at 974.

II

Before dealing with the Top Hatters' contentions, a more detailed recital of the uncontroverted facts offered in support of summary judgment is appropriate.

Once a year, for a few days in the summer, GGFA, a private non-profit corporation, sponsors and runs the Gilroy Garlic Festival. The Festival offers food, contests, music, and family recreation activities—with an emphasis on garlic—in a family-friendly environment. Such attractions include the Great Garlic Cook-Off cooking contest and Gourmet Alley, where garlic-laced calarmari and scampi, garlic chicken stir fry, garlic sausage sandwiches, and garlic bread are served. Magicians, dance troupes, puppets and jugglers offer entertainment geared toward children in a special area.

The Festival at issue was held in Christmas Hill Park, a public park in the City of Gilroy, from July 28 to July 30, 2000. In order to secure this venue, GGFA entered into a facility reservation contract with the City. Under the terms of this agreement, GGFA was required to "understand and agree that security and traffic control may be required by the Gilroy Police Department."

GGFA itself has a chair of security and an assistant chair of security, who are unpaid volunteers, one of whom is usually a law enforcement officer with the City of Gilroy Police Department or another local law enforcement agency. At the conclusion of the Festival, the City of Gilroy Police Department typically submits a bill to GGFA for expenses incurred in providing its law enforcement officers to staff the Festival.

GGFA had an informal dress code in place; however, as the Top Hatters point out, at the time of the incident, there was no written policy in existence, nor was there one posted. According to the alleged dress code, persons wearing clothing with gang colors or insignia were allowed to remain at the Festival only if they removed such clothing. Individuals refusing to remove clothing with gang colors or insignia were not permitted to remain at the Festival. Such policy was adopted as a response to an increase in gang-related violence at the Festival in prior years which had negatively impacted attendance. The dress code was not applied to the area outside the Festival.

As the Top Hatters entered the Festival sporting their vests, off-duty Gilroy Police Sergeant Donald Kludt, GGFA's chair of security, dressed in plain clothes, spotted them, contacted Gilroy Police Officer Brenda Bergman, and requested that she escort the Top Hatters back to the gate. Officer Bergman was armed and uniformed and assigned to Festival security. In his deposition, Sergeant Kludt explained why he contacted Officer Bergman for assistance:

Q: Was it the fact that she [Officer Bergman] was an armed uniformed officer, was that part of your thought process in wanting her to be with you?

A: Yeah.

Q: Because you were not armed; correct?

A: Correct.

Q: And you were not uniformed; correct?

A: Correct.

Q: And you wanted Officer Bergman to assist you because she would give some air of authority as a police officer; correct?

[Objection]

Q: Would that be a fair statement?

A: Yes.

Officer Bergman duly approached the Top Hatters and requested that they follow her to the gate and they complied. Once they arrived there, Sergeant Kludt explained GGFA's dress code policy to them: "I told them that if they refused to remove their [gang] colors and enjoy the festival that we will ask them to leave and then we will refund their money, their entry fee into the festival." The Top Hatters, however,

felt that this was not right, that they had their rights to wear their vests where they wanted to and this was not right. And I [Sergeant Kludt] told them: Well, I have a policy and I'm enforcing this policy and I'm asking you to leave if you're choosing not to, you know, come into the festival without your colors.

So they left. And then I walked around with them, went to the ticket booth and ordered those people to refund these people their money.

Q: Where was Officer Bergman at the time?

A: Standing next to me.

The Top Hatters challenge on appeal the district court's grant of summary judgment, asserting that there were genuine issues of material fact as to whether GGFA was a state actor and whether the Top Hatters were engaged in protected expressive conduct or expressive association. The Top Hatters also assert that the City was liable for enforcing an unconstitutional dress code which it had impliedly adopted.

III

Under familiar principles, even a private entity can, in certain circumstances, be subject to liability under section 1983. See Sutton v. Providence St. Joseph Medical Ctr., 192 F.3d 826, 835-36 (9th Cir.1999). In Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Supreme Court created a two step analysis for determining whether or not there was state action by a private actor sufficient to establish liability for a constitutional tort. The first inquiry was "whether the claimed deprivation has resulted from the exercise of a right or privilege having its source in state authority." Id. at 939, 102 S.Ct. 2744. The second was "whether, under the facts of this case, ... [the] private parties, may be appropriately characterized as `state actors.' " Id. In Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001), the Court introduced a multi-factored test. Id. at 295-300, 121 S.Ct. 924. The inquiry is a general one: "[S]tate action may be found if, though only if, there is such a `close nexus between the State and the challenged action' that seemingly private behavior `may be fairly treated as that of the State itself.'" Id. at 295, 121 S.Ct. 924 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). Some of the factors to consider in determining whether there is a "close nexus" are: (1) the organization is mostly comprised of state institutions; (2) state officials dominate decision making of the organization; (3) the organization's funds are largely generated by the state institutions; and (4) the organization is acting in lieu of a traditional state actor. See id. at 295-99, 121 S.Ct. 924.

The Top Hatters argue that there is a sufficiently "close nexus" between the GGFA and the City of Gilroy and point to the following facts in support of its contention:

1. The festival...