Salvador Reza v. Russell Pearce ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR REZA, No. 13-15154
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-01170-
FJM
RUSSELL PEARCE; JEFF TRAPP; JOHN
BURTON,
Defendants-Appellees. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, Senior District Judge
Argued and Submitted
March 12, 2015—San Francisco, CA
Filed August 18, 2015
Amended November 19, 2015
Before: J. Clifford Wallace, Milan D. Smith, Jr.,
and Paul J. Watford, Circuit Judges.
Order;
Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence and Partial Dissent by Judge Wallace
2 REZA V. PEARCE
SUMMARY*
Civil Rights
The panel denied a petition for panel rehearing, denied a
petition for rehearing en banc on behalf of the court, and
amended the opinion filed on August 18, 2015, appearing at
798 F.3d 881 (9th Cir. 2015).
The panel reversed the district court’s summary judgment
in favor of Arizona State Senator Pearce and affirmed the
district court’s Fed. R. Civ. P. 12(b)(6) dismissal of claims
against police officers in plaintiff’s action alleging that: (1)
Senator Pearce violated plaintiff’s constitutional rights when
he ordered plaintiff removed, and barred, from the Arizona
Senate building; and (2) police officers violated plaintiff’s
rights when they prevented plaintiff from entering the Senate
building and ultimately arrested him.
The panel first held that the Senate building was a limited
public forum. The panel determined that although Senator
Pearce’s restrictions on plaintiff, which attempted to preserve
the ability of the Senate to hold uninterrupted legislative
hearings, were viewpoint neutral, there were material issues
of disputed fact concerning whether plaintiff actually
disrupted the proceedings, and whether Senator Pearce had
legitimate concerns that, if plaintiff were allowed into the
Senate building in the future, he would interrupt legislative
debate. The panel concluded that, viewing the evidence in
the light most favorable to plaintiff, the non-moving party,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
REZA V. PEARCE 3
Senator Pearce violated plaintiff’s clearly established First
Amendment rights and that the district court erred by granting
him qualified immunity on summary judgment. The panel
remanded for further proceedings.
The panel held that the district court did not err in
granting the police officers’ motion to dismiss the claims
against them on qualified immunity grounds because the
officers arrested plaintiff for criminal trespass pursuant to a
facially-valid order issued by Senator Pearce.
The panel further held that the district court did not abuse
its discretion in granting Senator Pearce’s Motion for
Protective Order, which prevented plaintiff from questioning
Senator Pearce about his acquaintance with J.T. Ready, a
purported white supremacist.
Concurring in part and dissenting in part, Judge Wallace
would hold that Senator Pearce is entitled to qualified
immunity and he would affirm the summary judgment in his
favor.
COUNSEL
Stephen Montoya (argued), Montoya, Jimenez, and Pastor,
P.A., Phoenix, Arizona, for Plaintiff-Appellant.
Loren R. Ungar (argued), Rose Law Group, PC, Scottsdale,
Arizona, for Defendant-Appellee Russell Pearce.
Sandra Slaton (argued), Slaton & Sannes, P.C., Scottsdale,
Arizona, for Defendant-Appellee John Burton.
4 REZA V. PEARCE
Luane Rosen (argued), Charles D. Onofry, Schneider &
Onofry, P.C., Phoenix, Arizona, for Defendant-Appellee Jeff
Trapp.
ORDER
The panel has voted to deny the petition for panel
rehearing. Judges Smith and Watford voted to deny the
petition for rehearing en banc, and Judge Wallace so
recommends. The full court has been advised of the petition
for rehearing en banc, and no judge of the court has requested
a vote on en banc rehearing. See Fed. R. App. P. 35(f). The
petition for panel rehearing and the petition for rehearing en
banc are DENIED. The court’s opinion and the dissent filed
August 18, 2015, and appearing at 798 F.3d 881 (9th Cir.
2015), are hereby amended. An amended opinion and dissent
are filed herewith. No further petitions for rehearing or
rehearing en banc may be filed.
OPINION
M. SMITH, Circuit Judge:
In this § 1983 action, Salvador Reza alleges that Arizona
State Senator Russell Pearce violated his constitutional rights
when he ordered Reza removed, and barred, from the Arizona
Senate building (the Building) at the state capital. Reza
contends that Senator Pearce targeted him because of his
public criticism of the senator, and because of Reza’s
Mexican heritage. Senator Pearce responds that he was
justified in barring Reza from the Building because Reza
disrupted Senate proceedings, and because he believed Reza
REZA V. PEARCE 5
would interrupt Senate proceedings in the future. The district
court granted summary judgment to Senator Pearce on
qualified immunity grounds because it concluded that Pearce
had “an objectively reasonable basis . . . to conclude that
action needed to be taken to protect and preserve safety and
decorum,” and that if Reza “was mistakenly targeted as a
disruptive member of the crowd” that such a mistake could
not violate the First Amendment. The district court assumed
that if such a mistake was made, then it did not violate clearly
established law to bar Reza from the building in the future
based on a fear of future disturbances.
Reza also alleges that officers Jeff Trapp and John Burton
violated his rights under the First and Fourth Amendments by
preventing Reza from entering the Building, and ultimately
arresting him. Reza challenges the district court’s order
granting Rule 12(b)(6) motions to dismiss his claims against
Trapp and Burton on qualified immunity grounds.
Finally, Reza challenges a protective order granted by the
district court that prevented him from obtaining evidence
concerning Senator Pearce’s relationship with J.T. Ready, a
white supremacist leader.
We reverse the district court’s decision to grant summary
judgment to Senator Pearce, and remand for further
proceedings consistent with this opinion. Based on our
review of the record, we find several disputed issues of
material fact that affect our determination of whether Senator
Pearce violated Reza’s First Amendment rights. Thus, when
we resolve factual disputes in favor of Reza’s version of
events, as required on a motion for summary judgment, we
conclude that Senator Pearce’s alleged conduct violated our
circuit’s clearly established First Amendment law. We affirm
6 REZA V. PEARCE
the district court’s rulings regarding officers Trapp and
Burton, and its protective order.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Background
A. The Alleged Disruption of the Arizona Senate
Debate
Salvador Reza is a member of Tonatierra, a community
development organization that seeks to protect the rights of
migrant workers and their families. On February 22, 2011,
Reza attended a legislative hearing at the Building concerning
the Omnibus Immigration Bill, a state immigration law.
The hearing on the Omnibus Immigration Bill attracted
significant public attention. Because of the number of people
already in the Building when Reza and other supporters of
Tonatierra arrived, he and those supporters were unable to sit
in the room where the Senate hearing was held. Instead, Reza
sat in an overflow room, where people could view a broadcast
of the Senate hearing proceedings. Both opponents and
supporters of the proposed legislation applauded and booed
in the overflow room during the course of the hearing.
Senator Pearce claims that, near the end of the day’s
proceedings, noise from the overflow room began to interfere
with legislative debate. At this time, Officer John Burton
approached Reza and asked him to try to silence the audience.
Reza refused to do so and, when the officer said he might
have to detain some protestors if they kept loudly clapping,
Reza allegedly said “do what you have to do.” In his
deposition, Officer Burton states that Reza was
REZA V. PEARCE 7
confrontational and challenged the officer by saying, “Go
ahead, throw me out.”
Around 10:00 pm, Sergeant-at-Arms Joe Kubacki entered
the overflow room and told the crowd to stop applauding,
because the noise was violating the Senate’s rules of
decorum. In his deposition, he states that some members of
the audience, including Reza, started applauding even louder.
Kubacki reported this incident to Senator Pearce. Senator
Pearce was the president of the Senate at that time, and had
authority to maintain decorum for the Senate. In his affidavit,
Senator Pearce claims that, in the aftermath of a recent
shooting at an event held by Congresswoman Gabrielle
Giffords, public officials were “on edge” and “nervous,” and
were particularly concerned about potential violence at
protests. Earlier that day, police had arrested four protestors
at a press conference held by State Senator Krysten Sinema.
When Senator Pearce asked Kubacki how to handle the
protestors in the overflow room, Kubacki apparently advised
that, since the legislative hearing appeared to be concluding,
it would be better to try to limit disturbances in the short term
and not arrest any protestors or attempt to remove them from
the Building.
Senator Steve Gallardo, who attended the Omnibus
Immigration Bill hearing, submitted an affidavit stating that:
“I never saw Mr. Reza engage in any disruptive behavior at
the Arizona State Senate on February 22, 2011 or at any other
time . . . Nor did I ever observe anyone either disrupt or
interrupt the public hearing before the Appropriations
Committee on February 22, 2011.” Others attending the
hearing have supported Senator Gallardo’s affidavit. For
instance, Jason Odhner, an individual who was seated in the
8 REZA V. PEARCE
overflow room during the hearing, testified that, “[d]uring the
entire time that I was at the Senate building on that occasion,
I never saw Mr. Reza engage in any type of disruptive or
disrespectful behavior.”
B. Senator Pearce’s Ban of Salvador Reza
After the Omnibus Immigration Bill hearing concluded,
Senator Pearce approached Officer Jeff Trapp and asked him
to identify those who had been protesting loudly in the
overflow room. Senator Pearce directed Officer Trapp to
deny entrance into the Building to those he identified, due to
their disorderly and disruptive behavior. The officers
identified Reza as one of the individuals who had disrupted
the Senate hearing, and therefore planned to bar Reza from
entering the Building.
C. Reza’s Arrest
On February 24, 2011, Reza tried to enter the Building for
the purpose of meeting with Senator Gallardo to discuss
obtaining a permit for future protests. At that time, Officers
Trapp and Burton told Reza that he was not permitted inside
the Building because of his disorderly and disruptive behavior
during the Omnibus Immigration Bill hearing. When Reza
nonetheless tried to enter the Building, the two officers
arrested Reza and took him to a holding room in the Building.
Reza was eventually arrested for trespassing and transferred
to the Maricopa County Jail, where he remained for
approximately five hours.
REZA V. PEARCE 9
D. Press Release and New Rules Governing Senate
On February 25, 2011, Senator Pearce issued a press
release concerning the February 22 protest and the purported
disruption he claimed had occurred. Senator Pearce’s press
release discussed the tense environment in Arizona after a
fatal shooting at an event hosted by Representative Giffords,
and the protest at the speech by Senator Sinema. On March
14, 2011, Senator Pearce issued new rules concerning public
interruptions of proceedings in the Arizona Senate. Under the
new rules, first time violators would be excluded from the
Building for two weeks; subsequent violators would be
excluded for 60 days.
II. Prior Proceedings
On June 13, 2011, Reza filed this § 1983 action, alleging
that Senator Pearce violated his First Amendment rights by
barring him from the Building generally, and specifically by
preventing him from entering the Building to attend a
meeting with Senator Gallardo on February 24, 2011. Reza
alleges that Senator Pearce targeted him because of his
Mexican ancestry and his public criticism of Senator Pearce.
Reza also filed separate § 1983 actions against Officers Trapp
and Burton for arresting him, and preventing him from
entering the Building on February 24, 2011.
The district court granted summary judgment to Senator
Pearce, concluding that the senator was protected by qualified
immunity. The district court also granted motions to dismiss
filed by Officers Trapp and John Burton. In addition, the
district court granted a protective order preventing Reza from
obtaining evidence concerning Senator Pearce’s relationship
with J.T. Ready, a white supremacist leader.
10 REZA V. PEARCE
This timely appeal followed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291. We review de novo the district court’s
decision to grant summary judgment to Senator Pearce on
qualified immunity grounds, considering disputed material
facts in the light most favorable to Reza, the non-moving
party. See Garcia v. Cnty. Of Merced, 639 F.3d 1206, 1208
(9th Cir. 2011). We also review de novo the district court’s
decision to dismiss the claims against Officers Trapp and
Burton for failure to state a claim on which relief can be
granted. See Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir.
2010).
DISCUSSION
I. Senator Pearce’s Qualified Immunity
Reza contends that Senator Pearce violated his First
Amendment rights when he barred him from entering the
Building. The district court granted summary judgment to
Senator Pearce, concluding that because Reza did not allege
a First Amendment violation, Senator Pearce was entitled to
qualified immunity.
We reverse the district court’s decision and remand for
further proceedings consistent with this opinion. To overcome
Senator Pearce’s qualified immunity defense, Reza must
establish both that Senator Pearce violated his First
Amendment rights, and that this violation was of a “clearly
established statutory or constitutional right[] of which a
reasonable person would have known.” Pearson v. Callahan,
REZA V. PEARCE 11
555 U.S. 223, 231 (2009). We find several material issues of
disputed fact that, if resolved in favor of Reza’s version of
events, would show that Senator Pearce’s conduct violated
clearly established First Amendment law. Therefore, the
district court erred in granting summary judgment to Senator
Pearce.
A. Was There A First Amendment Violation?
1. Forum
We begin by determining what kind of forum the
Building is because the type and scope of restrictions the
government may place on speech depends on where the
speech occurs. See White v. City of Norwalk, 900 F.2d 1421,
1425 (9th Cir. 1990). Federal courts have generally
recognized three categories of public fora: (1) traditional
public fora; (2) designated public fora; and (3) limited public
fora. Traditional public fora are areas historically used by the
public for assembly, such as sidewalks and parks. See Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44
(1983). Designated public fora are those where “the
government intentionally opens a nontraditional forum for
public discourse.” DiLoreto v. Downey Unified Sch. Dist. Bd.
Of Educ., 196 F.3d 958, 964 (9th Cir. 1999). Limited public
fora are public property “limited to use by certain groups or
dedicated solely to the discussion of certain subjects.”
Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470
(2010).
Although Reza contends that the Building is a public
forum, it is more specifically a limited public forum. We have
held that city council meetings, where the public has the
opportunity to address officers of a local government or local
12 REZA V. PEARCE
governmental agency, are limited public fora. White, 900 F.2d
at 1425. Much like a city council meeting, which is a
“governmental process with a governmental purpose,” id., the
hearing on the Omnibus Immigration Bill involved
proceedings concerning the possible enactment of a public
law by a governmental institution.
The fact that Reza was only a member of the audience,
and not an individual addressing the Senate hearing, has no
bearing on the nature of the forum. Put another way, unlike
the plaintiffs in White, who were addressing the limited
forum as part of the city council proceedings themselves,
Reza was not testifying before the Senate. The disputed
speech involved Reza’s reactions to proceedings being held
in the Building. At bottom, however, “[a] limited public
forum is a limited public forum.” Norse v. City of Santa Cruz,
629 F.3d 966, 976 (9th Cir. 2010). Restrictions on the speech
of spectators in a limited public forum are subject to the same
constitutional rules that apply to those addressing the
chamber. Id.
2. Legal Standard in a Limited Public Forum
We have recognized that, in order to safeguard the
purpose of a limited public forum, the government may
restrict speech in that forum. See White, 900 F.2d at 1426. “In
addition to time, place, and manner regulations, the state may
reserve the forum for its intended purposes, communicative
or otherwise, as long as the regulation on speech is reasonable
and not an effort to suppress expression merely because
public officials oppose the speaker’s view.” Perry Educ.
Ass’n, 460 U.S. at 46. See also Kindt v. Santa Monica Rent
Control Bd., 67 F.3d 266, 271 (9th Cir. 1995) (“The fact
remains that limitations on speech at those meetings must be
REZA V. PEARCE 13
reasonable and viewpoint neutral, but that is all they need to
be.”).
Although we conclude below that Senator Pearce’s
restrictions on Reza, which attempted to preserve the ability
of the Senate to hold uninterrupted legislative hearings, were
viewpoint neutral, there are material issues of disputed fact
concerning whether Reza actually disrupted the proceedings,
and whether Senator Pearce had legitimate concerns that, if
Reza were allowed into the Building in the future, he would
interrupt legislative debate. These factual issues affect our
analysis concerning the reasonableness of the restrictions
placed on Reza.
3. Viewpoint Neutrality
Reza contends that Senator Pearce targeted him because
of his Mexican ethnicity, and because he had strongly
articulated his opposition to Pearce’s immigration legislation.
The record in this case does not support these contentions. So
far as revealed by the record, Senator Pearce simply ordered
state Senate officers to identify people who were being loud
in the overflow room. After the officers designated Reza as
one of these individuals, they obtained public domain
photographs of Reza, which allowed them to identify him in
the future, and bar him from the Building. Senator Pearce
subsequently issued a press release stating that individuals
who had been identified as disrupting Senate proceedings
would not be allowed inside the Building for a period of two
weeks, and in case of multiple disruptions, for a period of 60
days.
It may be that opponents of the Omnibus Immigration Bill
outnumbered supporters of that bill in the overflow room, and
14 REZA V. PEARCE
that the ban on individuals who had allegedly disrupted the
Senate hearing disproportionately impacted opponents of the
bill. Nevertheless, the record indicates that Senator Pearce’s
ban on Reza resulted from a neutral policy that was
implemented because some in the Senate hearing room
claimed that they had been disturbed by noise emanating
from the overflow room.
4. Disputed Facts As To Reasonableness
A restriction on expressive conduct in a limited forum
must be “reasonable in light of the purpose served by the
forum . . . .” DiLoreto v. Downey Unified Sch. Dist. Bd. of
Educ., 196 F.3d 958, 965 (9th Cir. 1999). See also Preminger
v. Peake, 552 F.3d 757, 765 (9th Cir. 2008). We permit
restrictions to maintain decorum and order in a proceeding.
See Kindt, 67 F.3d at 271.
There is a factual dispute as to whether Reza’s speech in
the overflow room actually disrupted the hearing regarding
the Omnibus Immigration Bill, and whether Senator Pearce
was legitimately concerned that, if Reza were allowed into
the Building in the future, he would interrupt legislative
debate. Some claim that Reza’s actions interfered with the
Senate hearing on the Omnibus Immigration Bill, which
prevented the Senate from finishing its business. For
example, Officer Burton testified that he asked Reza to keep
his voice down: “I spoke to Mr. Reza and instructed him that
it was getting loud, that I didn’t want the senators to become
upset and ask[] to have people thrown out. Mr. Reza told me,
‘Go ahead[;] throw me out.” Others, including Senator
Gallardo, claim that Reza did not do anything to disrupt the
Senate hearing. They contend that Reza only applauded
loudly.
REZA V. PEARCE 15
Senator Pearce was entitled to rely on information
provided to him by Senate officers that identified Reza as an
individual who was disrupting debate. However, at least one
officer clearly told the senator that there was no reason to
remove any audience members from the Senate building,
Reza included, during the Senate debate, although that may
have been a tactical decision, rather than an evaluation of
whether there had been any disruption. More importantly, it
is uncontroverted that Senate proceedings continued for the
duration of the Omnibus Immigration Bill protest, a fact that
the senator knew firsthand. This meant that, drawing all
reasonable inferences in favor of the non-moving party, any
purported protest never actually disrupted Senate
proceedings. It was only two days after the hearing concluded
that Senator Pearce ordered Reza barred from the Building.
In a limited public forum, our inquiry into the
reasonableness of restrictions takes into account whether the
restrictions imposed leave open alternative channels of
communication. In Kindt, we considered rules governing the
manner in which members of the public could address a rent
control board during a hearing in a limited public forum. 67
F.3d at 271. We determined that there was no First
Amendment violation because although the plaintiff was
required to comply with the rules of the rent control board,
the plaintiff still retained the ability to express himself. Id. In
the present case, however, Senator Pearce completely barred
Reza from entering the Building, which ultimately prevented
Reza from meeting with an elected senator. Senator Pearce’s
solution, imposing a complete bar on Reza’s entry into the
Building, clearly exceeds the bounds of reasonableness
clearly established by White, Kindt, and Norse as a response
to a single act of disruption, for the reasons explained in the
next section. Senator Pearce initially imposed an indefinite
16 REZA V. PEARCE
bar on Reza and later promulgated regulations that limited the
bar on disruptive individuals to two weeks for first time
offenders, although it is unclear if these regulations modified
the indefinite bar applicable to Reza.
As president of the Senate, Senator Pearce did have the
power to maintain order and decorum in the Senate
proceeding. Even if we acknowledge the senator’s authority
to bar disruptive individuals from Senate debates, we still
encounter factual disputes concerning whether Reza
interrupted Senate proceedings, and whether Senator Pearce
was justified in determining that Reza would interfere with
Senate proceedings in the future. We have held that “[w]hen
a respondent to a motion for summary judgment submits
proper affidavits by individuals with personal knowledge and
other cognizable and significantly probative evidence, such
that a reasonable juror drawing all inferences in favor of the
respondent could return a verdict in the respondent’s favor,
the judge must treat that fact as genuinely at issue.” United
States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999).
The affidavits and testimony submitted by Reza raise
triable issues of material fact. See Norse, 629 F.3d at 973
(reversing summary judgment to Mayor where citizen
“wanted to call attendees of the Council meetings as
witnesses to testify about whether Norse actually disrupted
them”). We thus conclude that it was error for the district
court to grant summary judgment to Senator Pearce on the
ground that Reza had not shown a First Amendment
violation.
REZA V. PEARCE 17
B. Was the First Amendment Violation Clearly
Established?
We further conclude that, based on the second prong of
the qualified immunity test, viewing the evidence in the light
most favorable to Reza, the non-moving party, Foster v.
Runnels, 554 F.3d 807, 811 (9th Cir. 2009), Senator Pearce’s
actions violated Reza’s clearly established First Amendment
rights. See Pearson, 555 U.S. at 231; Eng v. Cooley, 552 F.3d
1062, 1075 (9th Cir. 2009).
1. Meaning of “Clearly Established”
A right is clearly established if it was “sufficiently clear
[at the time of the conduct at issue] that every reasonable
official would have understood that what he is doing violates
that right.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015).
See also Anderson v. Creighton, 483 U.S. 635, 640 (1987).
“If the law does not ‘put the officer on notice that his conduct
would be clearly unlawful, summary judgment based on
qualified immunity is appropriate.’” Foster, 554 F.3d at 815
(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
We note, however, that the Supreme Court does “not
require a case directly on point.” Ashcroft v. al-Kidd, 131 S.
Ct. 2074, 2083 (2011). Instead, existing precedent must have
placed the constitutional question beyond debate. Id.
“[O]fficials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Hope
v. Pelzer, 536 U.S. 730, 741 (2002). Ultimately, the “clearly
established” prong of the qualified immunity test shows
deference towards the actions of government officials, but
does not shield individuals who are “plainly incompetent or
18 REZA V. PEARCE
those who knowingly violate the law.” Taylor, 135 S. Ct. at
2044.
2. Ninth Circuit Law at the Time of Senator
Pearce’s Conduct
On February 22, 2011, the date of the Omnibus
Immigration Bill hearing, clearly established law held that an
individual could express disagreement in a limited public
forum, but that the government could restrict the individual’s
speech to safeguard the purpose of the forum, as long as the
restrictions were reasonable and viewpoint neutral. See
Norse, 629 F.3d at 975. Our circuit’s case law also
unambiguously held that a government official could remove
an individual from a limited public forum only if the
individual had actually disrupted proceedings. Id.
In evaluating the question of qualified immunity, we must
be careful not to define “clearly established” at a “high level
of generality.” City & Cnty. of San Francisco v. Sheehan, 135
S. Ct. 1765, 1775–76 (2015). No such high level of generality
is at issue here. Norse, an en banc decision from the year
before the incident at issue, was emphatic that actual
disruption was required to eject a person from a limited
public forum, and that the defendant “cannot define
disruption so as to include non-disruption.” 629 F.3d at 976.
“Actual disruption means actual disruption. It does not mean
constructive disruption, technical disruption, virtual
disruption, nunc pro tunc disruption, or imaginary
disruption.” Id. Norse reaffirmed the fundamental principle
that the government can remove an individual from a limited
public forum only if the individual actually disrupts the
proceedings. No cases, in the Ninth Circuit or otherwise, even
remotely suggest that Norse’s principle can be inverted to
REZA V. PEARCE 19
indefinitely ban an individual from a government building
based on a single disruption of a hearing.
In White, for example, we considered a facial challenge
to a city ordinance that authorized a city council to remove
individuals from hearings if they made “personal,
impertinent, slanderous or profane remarks.” 900 F.2d at
1424. We upheld the city ordinance, but only because it
authorized removal when an attendee “disrupts, disturbs or
otherwise impedes the orderly conduct of the Council
meeting.” Id. at 1426.
In Kindt, we analyzed a First Amendment challenge
regarding an individual’s multiple removals from a rent
control board’s meetings. 67 F.3d at 268. We concluded that
the board’s ejection of the individual had been valid under the
First Amendment. The individual had actually disrupted rent
control meetings by speaking out of order and yelling at the
board during proceedings. Id. at 268–69.
Thus, nothing in our caselaw suggests that Pearce could
have reasonably believed that he could violate Norse and
instead bar Reza from the building at a time when it is
undisputed that he was not being disruptive: when he went to
meet with Senator Gallardo a few days after the hearing on
the Omnibus Immigration Bill.
3. Factors Considered in the Present Case
In the case before us, the senator never ordered that Reza
be removed from the overflow room during the Senate
hearing on the Omnibus Immigration Bill. Senate proceedings
continued uninterrupted during the alleged protest. Despite
Senator Pearce having knowledge of all these facts, two days
20 REZA V. PEARCE
after the Omnibus Immigration Bill hearing, he decided to
ban Reza from the Building altogether. The effect of the ban
was thus to exclude Reza not simply from all future hearings
related to the Omnibus Immigration Bill, but from all future
hearings on any subject, based on the purported fear that he
could be disruptive in the future.
In addition, because the Building housed the legislative
offices of all members of the Arizona Senate, the ban
precluded Reza from visiting his elected representatives to
urge legislative action on any subject. Indeed, the ban
ultimately resulted in Reza’s arrest when he attempted to visit
a state senator with whom he had arranged a meeting.
We also evaluate the asserted public safety concern.
Senator Pearce correctly urges that “the interest in keeping a
government building accessible and safe is both legitimate
and significant.” Sammartano v. First Judicial Dist. Court,
303 F.3d 959, 973 (9th Cir. 2002), abrogated on other
grounds by Winter v. Nat. Res. Def. Council., 129 S. Ct. 365
(2008).
However, mindful of the summary judgment context, we
are not persuaded by the senator’s public safety rationale for
his restrictions on Reza. At the time of the challenged
conduct, our First Amendment doctrine had clearly held that
safety concerns of the type Senator Pearce raises here must be
supported by the record. See id. Pursuant to this case law, we
review the record to determine if it “show[s] that the asserted
risks were real.” Id. at 967. We also determine whether the
First Amendment restrictions at issue serve the government’s
public safety interest, although we do not apply a least
restrictive means test. “The Government’s decision to restrict
access to a nonpublic forum need only be reasonable; it need
REZA V. PEARCE 21
not be the most reasonable or the only reasonable limitation.”
Cornelius v. NAACP Legal Def. And Educ. Fund Inc., 473
U.S. 788, 808 (1985).
Here, the senator did not submit sufficient evidence
showing that Reza posed a threat to the public safety. Instead,
the senator asks us to infer that it was reasonable to believe
that Reza was a threat based only on the tense environment
that existed in Arizona at the time of the protest. At summary
judgment, we are required to draw the opposite inference,
since Reza is the non-moving party. Further, Senator Pearce
took an extreme action, barring Reza from the Senate
building completely. It is unclear how Pearce could have
reasonably believed that Reza posed a risk that could justify
such a ban.
We thus conclude that, when genuine disputes of fact are
resolved in Reza’s favor, Senator Pearce violated Reza’s
clearly established First Amendment rights and that the
district court erred by granting summary judgment to Senator
Pearce.
II. Officers’ Qualified Immunity
Reza also contends that Officers Jeff Trapp and John
Burton violated his constitutional rights by preventing him
from entering the Building, and by subsequently arresting
him. The officers respond that they are entitled to qualified
immunity, because they were complying with a facially-valid
order from Senator Pearce to exclude Reza, and because they
had probable cause to arrest Reza.
We hold that the district court did not err in granting the
officers’ motion to dismiss on qualified immunity grounds,
22 REZA V. PEARCE
because they arrested Reza for criminal trespass pursuant to
a facially-valid order issued by Senator Pearce.
In Arizona, a person commits criminal trespass in the
third degree by “[k]nowingly entering or remaining
unlawfully on any real property after a reasonable request to
leave by the owner or any other person having lawful control
over such property, or reasonable notice prohibiting entry.”
A.R.S. 13-1502(A)(1). An officer is “entitled to qualified
immunity on a false arrest claim if a reasonable officer in his
position could have believed that probable cause existed.”
Norse, 629 F.3d at 978.
Senator Pearce issued the order to exclude Reza pursuant
to his authority as President of the State Senate. Rule 2(B) of
the Arizona Senate Rules states that the Senate President
“shall have control of the Senate Chamber . . . all other parts
of the Senate wing and all other areas and buildings used
exclusively by the Senate.” Rule 2(C) states that the President
“shall preserve and maintain order and decorum.”
Thus, Senator Pearce’s order was facially valid. Perhaps
the substantive legitimacy of Senator Pearce’s order could be
challenged, but not in a lawsuit against the officers. “[T]he
existence of a statute or ordinance authorizing particular
conduct is a factor which militates in favor of the conclusion
that a reasonable official would find that conduct
constitutional.” Grossman v. City of Portland, 33 F.3d 1200,
1209 (9th Cir. 1994). Furthermore, Reza concedes that he
continued his attempt to walk into the Building to meet with
Senator Gallardo, after being told by the officers that he could
not enter the Building. Under the circumstances, Reza’s
attempted entry was an act of trespass under Arizona law, and
REZA V. PEARCE 23
the officers had probable cause to arrest Reza based on
Senator Pearce’s facially-valid order.
III. Questions Concerning J.T. Ready
Reza also claims that the district court erred in granting
Senator Pearce’s Motion for Protective Order, which
prevented Reza from questioning Senator Pearce about his
acquaintance with J.T. Ready, a purported white supremacist.
Discovery normally must be “relevant to any party’s
claim or defense.” Fed. R. Civ. P. 26(b)(1). Even if discovery
is relevant, however, a court may issue a protective order “to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed. R. Civ. P.
26(c). We review the district court’s decision to enter the
protective order for an abuse of discretion. See Preminger,
552 F.3d at 768 n.10.
It is unclear from the record whether information relating
to J.T. Ready would have led to the discovery of admissible
evidence. The only relevant issue related to Senator Pearce’s
alleged friendship with J.T. Ready is the senator’s purported
discrimination against Reza based on Reza’s Mexican
ancestry. However, Reza had already discovered public
information concerning the purported friendship between
Senator Pearce and J.T. Ready. This public information
diminishes the probative value of additional questions
concerning the alleged friendship. The district court
concluded that “[i]f defendant associated with a Neo-Nazi
murderer, details about this relationship may make it slightly
more likely that defendant himself was racist.” Nevertheless,
the court determined that “it is highly likely that the evidence
would be excluded under Federal Rule of Evidence 403.” In
24 REZA V. PEARCE
light of the discretion entrusted to district judges in applying
Federal Rule of Evidence 403, the district court did not abuse
its discretion in granting the protective order.
IV. Conclusion
We reverse the district court’s decision to grant summary
judgment to Senator Pearce and remand for further
proceedings consistent with this opinion. We affirm the
district court’s rulings regarding officers Trapp and Burton,
and its protective order.
Each party shall bear its own costs on appeal.
REVERSED AND REMANDED IN PART.
AFFIRMED IN PART.
WALLACE, Circuit Judge, concurring in part and dissenting
in part:
I dissent from Part I of the majority opinion, which
incorrectly holds that Senator Pearce “violated Reza’s clearly
established First Amendment rights.” Opinion p. 17. The
Supreme Court has repeatedly cautioned courts—and our
circuit in particular—“not [to] define clearly established law
at a high level of generality.” Ashcroft v. Al-Kidd, 131 S. Ct.
2074, 2084 (2011); see also City & Cnty. of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1778 (2015) (reversing our
circuit’s decision on the basis that the officers were entitled
to qualified immunity); Lopez v. Smith, 135 S. Ct. 1, 6 (2014)
(per curiam) (reversing our circuit’s decision and cautioning
us against “framing our precedents at such a high level of
REZA V. PEARCE 25
generality” (internal quotation marks omitted)). Rather than
correct the course, as directed by the Supreme Court, in this
case, the majority continues in the wrong direction and I
therefore dissent.
To recover under 42 U.S.C. § 1983 Reza must show (1)
that Senator Pearce violated one of Reza’s statutory or
constitutional rights, and (2) that the right “was clearly
established at the time of the challenged conduct.” Plumhoff,
134 S. Ct. 2012, 2023 (2012) (internal quotation marks
omitted). As the Supreme Court recently explained, the
“clearly established” standard is not easily overcome: “An
officer ‘cannot be said to have violated a clearly established
right unless the right’s contours were sufficiently definite that
any reasonable official in [his] shoes would have understood
that he was violating it,’ meaning that ‘existing precedent . . .
placed the statutory or constitutional question beyond
debate.’” Sheehan, 135 S. Ct. at 1774, quoting Ashcroft, 131
S. Ct. at 2083. Qualified immunity, “[w]hen properly applied,
. . . protects all but the plainly incompetent or those who
knowingly violate the law.” Ashcroft, 131 S. Ct. at 2085
(internal quotation marks omitted).
As the majority recognizes, the Senate Building is a
limited public forum. Opinion p. 11. Therefore, the
government could restrict speech in the building so long as
any “regulation on speech [was] reasonable and not an effort
to suppress expression merely because public officials oppose
the speaker’s view.” Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 46 (1983). The majority
correctly concludes that “Senator Pearce’s ban on Reza
resulted from a neutral policy.” Opinion p. 14. But it fails to
recognize the reasonableness of Senator Pearce’s actions
given the circumstances he faced. As the majority concedes,
26 REZA V. PEARCE
“Senator Pearce was entitled to rely on information provided
to him by Senate officers that identified Reza as an individual
who was disrupting debate.” Opinion p. 15. And although at
least one officer told Senator Pearce that there was no reason
to immediately remove anyone from the building (perhaps
because doing so would have emboldened the disruptors and
created an even greater disturbance), that does not change the
fact that multiple other officers told the senator that Reza
caused an actual disturbance. Moreover, Senator Pearce’s
order was a response to the tense atmosphere created by the
recent shooting in Tucson in which a federal judge was
murdered, and the fact that state senators expressed fear for
their safety as a result of a disruption that morning at one
senator’s press conference. The majority’s discussion of
reasonableness makes no mention of any of these surrounding
circumstances. This omission ignores our case law requiring
that we judge reasonableness “in light of the purpose of the
forum and all of the surrounding circumstances.” Premigner
v. Peake, 552 F.3d 757, 765 (9th Cir. 2008) (internal
quotation marks omitted) (emphasis added). In my view, in
light of the purpose of the forum, to conduct legislative
business, the surrounding circumstances, and the information
the senator received from his officers, the senator’s ban
(subsequently limited to two weeks) on alleged disruptors
was reasonable and therefore did not violate the First
Amendment.
But we need not even reach the question of whether
Senator Pearce actually violated First Amendment law in this
case by relying, as he could, on reports given to him by
officers assigned to keep order, because there is no doubt that
the senator did not violate “clearly established” law at the
time of the challenged conduct. At that time, not a single
Supreme Court decision clearly established the right Reza
REZA V. PEARCE 27
now asserts. Implicitly acknowledging this fact, the majority
focuses solely on Ninth Circuit law. Opinion p. 18–19. After
reviewing our law at the time, the majority concludes that
“[n]o cases, in the Ninth Circuit or otherwise, even remotely
suggest that Norse’s principle can be inverted to indefinitely
ban an individual from a government building based on a
single disruption of a hearing.” Opinion p. 18–19. But this
answers the wrong question and is ultimately a red herring.
The fact that no cases affirmatively permitted an official to
ban an individual from a government building based on a
single disruption (the majority’s conclusion) is irrelevant for
purposes of qualified immunity. Instead, the relevant question
is whether any case expressly prohibited an official from
banning an individual from a government building for a
single disruption. None of our cases at the time of the hearing
in question answered that question.
In White, we upheld a city ordinance that allowed removal
of individuals from a city council hearing if they made
“personal, impertinent, slanderous or profane remarks.” White
v. City of Norwalk, 900 F.2d 1421, 1424 (9th Cir. 1990). The
case says nothing regarding whether a government official
can bar a person from future hearings for causing an actual
disruption. We reinforced this rule in Kindt. There we upheld
a rent control board’s decision to remove an individual from
a meeting because of an actual disruption. Kindt v. Santa
Monica Rent Control Bd., 67 F.3d 266, 272–73 (9th Cir.
1995). Again, the case says nothing about banning a person
from future meetings where they caused an actual disruption.
Last, in Norse, we held that rules of decorum are not facially
overbroad if they limit the ability of government officers to
eject individuals for actually disturbing a meeting. Norse v.
City of Santa Cruz, 629 F.3d 966, 976 (9th Cir. 2010). Here
again, the case says nothing about whether an official can ban
28 REZA V. PEARCE
an individual from future meetings as a result of an actual
disruption.
Maybe Senator Pearce made a mistake in banning Reza
from the senate building. Perhaps the First Amendment
should prohibit such a ban. But neither view should make any
difference in this case because at the time of the challenged
conduct Senator Pearce did not violate any “clearly
established” right. On this basis, I would hold that Senator
Pearce is entitled to qualified immunity and would affirm the
district court’s summary judgment in his favor. The
majority’s holding to the contrary continues our unfortunate
ignoring of the Supreme Court’s repeated caution to avoid
defining clearly established law at a high level of generality.”
Ashcroft, 131 S. Ct. at 2084. I therefore dissent from the
holding reversing the district court’s summary judgment in
favor of Senator Pearce but concur in the remainder of the
majority opinion.