Villegas v. City of Gilroy ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE VILLEGAS, BOB POELKER, 
MARCELO ORTA, and DON
DEROSIERS, No. 05-15725
Plaintiffs-Appellants,
v.  D.C. No.
CV-01-20720-JW
CITY OF GILROY, and GILROY OPINION
GARLIC FESTIVAL ASSOCIATION, INC.,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
February 16, 2007—San Francisco, California
Filed April 30, 2007
Before: Ronald M. Gould and Johnnie B. Rawlinson,
Circuit Judges, and Alfred V. Covello,* District Judge.
Opinion by Judge Covello
*The Honorable Alfred V. Covello, Senior United States District Judge
for the District of Connecticut, sitting by designation.
4773
VILLEGAS v. CITY OF GILROY 4775
COUNSEL
Randolph M. Hammock, Canoga Park, California, for the
plaintiffs-appellants.
4776 VILLEGAS v. CITY OF GILROY
Mark L. Strombotne and Bronwen E. Lacey, San Jose, Cali-
fornia, for the defendant-appellee City of Gilroy.
Gregory C. Simonian and G. Martin Velez, Daly City, Cali-
fornia, for the defendant-appellee Gilroy Garlic Festival Asso-
ciation.
OPINION
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 Ville-
gas 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 estab-
lish 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 viola-
1
Title 42 of the United States Code, section 1983, provides a cause of
action for the “deprivation of any rights, privileges or immunities secured
by the Constitution and laws” of the United States. 42 U.S.C. § 1983.
2
Having determined that there were no federal constitutional principles
compromised here, and having granted the defendants’ motion for sum-
mary judgment, the trial court declined to exercise jurisdiction over the
remaining state law claims and ordered them dismissed. The plaintiffs
have not appealed this ruling.
VILLEGAS v. CITY OF GILROY 4777
tion 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 accom-
panying the motion for summary judgment, and the responses
thereto, and the testimony submitted to the district court dis-
closes 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 insig-
nia. Upon noticing the plaintiffs’ similar dress, Donald Kludt,
3
The trial court also made conclusions of law as to whether a police
officer was acting under color of law and whether the Gilroy Garlic Festi-
val, Inc., was a state actor for the purposes of section 1983 liability. In
view of our conclusion that no constitutional violation has occurred here,
it is not necessary to address these additional issues.
4
The record includes photographs of the vests. In those photographs, the
word California appears at the bottom of the vests. At the time the plain-
tiffs entered the festival, however, the word Hollister appeared at the bot-
tom of the vests. Sometime between the festival and the time the
photographs were taken, the plaintiffs changed this portion of their vests.
4778 VILLEGAS v. CITY OF GILROY
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 pur-
poses “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, appel-
lant 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] under-
neath 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. Appel-
lant Donald Derosiers stated that to him the skull represented
death, the wings represented freedom and the top hat repre-
sented 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 inter-
pret it as.”
On July 30, 2001, the plaintiffs filed the complaint in this
case. On April 24, 2002, and April 29, 2002, respectively, the
5
Orta stated that the only portion of the insignia that had any meaning
was the top hat because of the club’s name, the “Top Hatters.”
VILLEGAS v. CITY OF GILROY 4779
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 judg-
ment. 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 judg-
ment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.
1996). “The appellate court must determine, viewing the evi-
dence 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. Adkins,
487 U.S. 42, 48 (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 (2001).
6
This court reversed because the district court, in granting the motions
to dismiss, relied on information in the declarations filed in support of the
motions. This court remanded, directing the district court to treat the
motions to dismiss as motions for summary judgment. Villegas v. City of
Gilroy, 90 Fed. Appx. 981, 982 (9th Cir. 2004) (designated not suitable
for publication).
4780 VILLEGAS v. CITY OF GILROY
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 con-
duct 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 constitu-
tional violation had occurred.
[1] The First Amendment specifically forbids the abridge-
ment 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 (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 likeli-
hood was great that the message would be understood by
those who viewed it.” Id. at 410-11; see also Texas v. John-
son, 491 U.S. 397, 404 (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.
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 mem-
ber’s vest constitutes expressive conduct for purposes of the
VILLEGAS v. CITY OF GILROY 4781
First Amendment. In Sammartano, however, the court did not
address the issue of whether the plaintiffs’ conduct was suffi-
ciently expressive to warrant First Amendment protection.7
[2] 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 Amend-
ment. The insignia on their vests depicted a skull with wings
on either side and a top hat. All of the members of the plain-
tiffs’ 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 dis-
trict court was, therefore, correct in concluding that the plain-
tiffs vests did not manifest an “intent to convey a
particularized message.” Spence, 418 U.S. at 410-11.
[3] In addition, there is little likelihood that any message
would be understood by those viewing the plaintiffs’ vests
and, further, the context in which the plaintiffs’ alleged
expression took place does not add any additional meaning to
7
In Sammartano, members of certain motorcycle clubs were not permit-
ted into courtrooms of a government building without removing their vests
and/or jackets adorned with club insignia. 303 F.3d at 962-63. When they
refused to remove them or leave the premises, they were arrested for tres-
pass. Id. The club members filed a section 1983 action, alleging violations
of their First Amendment rights. Id. at 964. The district court denied their
motion for a preliminary injunction and this court reversed. Id. at 975.
This court applied the standard for injunctive relief, that is, (1) the likeli-
hood of success on the merits and the possibility of irreparable harm, or
(2) the presence of serious questions and a balance that tips in favor of the
movant. Id. at 965. Although this court found the standard satisfied for
purposes of the preliminary injunctive relief sought, id. at 974, this court
did not address the question of whether the plaintiffs’ vests qualified as
expression for purposes of the First Amendment.
4782 VILLEGAS v. CITY OF GILROY
their symbol. The plaintiffs attended an annual festival cen-
tered around garlic that offered many varieties of food and
entertainment in a family-friendly atmosphere. Nothing about
the festival would tend to give any further meaning to the
plaintiffs’ act of wearing their vests and common insignia. As
this court has recognized, context is crucial when determining
whether conduct rises to the level of expression for purposes
of the First Amendment. Spence, 418 U.S. at 410; see also
Vlasak v. Superior Court of California, 329 F.3d 683, 690-91
(9th Cir. 2003).8 In this case, the plaintiffs’ act of wearing
their vests adorned with a common insignia simply does not
amount to the sort of expressive conduct protected by the First
Amendment right to freedom of speech.9
II. Expressive Association
[4] Also within the ambit of First Amendment protection
are the rights to freedom of intimate association and expres-
sive association. Roberts v. U.S. Jaycees, 468 U.S. 609, 617-
18 (1984). The plaintiffs argue that the district court erred
when it concluded that because the plaintiffs were not
engaged in expressive conduct, they did not have a right to
expressive association.
The plaintiffs cite United States v. Rubio, 727 F.2d 786,
791 (9th Cir. 1984), for the proposition that they are entitled
to relief on their First Amendment freedom of association
claim. In Rubio, this court concluded that the Hells Angels
8
In Vlasak, this court found the appellant’s conduct to be expressive for
purposes of the First Amendment where the appellant stood outside of a
circus holding a bull hook in one hand and a picture of the hook being
used on elephants in the other. Vlasak, 329 F.3d at 686, 690-91. The court
concluded that a person passing by would understand the purpose of the
bull hook because of the photographs. Id. at 691.
9
The plaintiffs further state that the dress code at issue was unconstitu-
tionally vague and overbroad. Neither the district court nor the appellees
in this case have addressed this purported facial attack on the dress code
policy and the complaint does not contain such an allegation.
VILLEGAS v. CITY OF GILROY 4783
motorcycle club had a First Amendment right to freedom of
association. That case, however, was decided prior to the
Supreme Court’s decision in Boy Scouts of America v. Dale,
530 U.S. 640 (2000), infra, and the Rubio panel did not
address the requirement of expressive activity as an incident
to a claim of freedom of association.10
The United States Supreme Court has recognized that “im-
plicit in the right to engage in activities protected by the First
Amendment is a corresponding right to associate with others
in pursuit of a wide variety of political, social, economic, edu-
cational, religious, and cultural ends.” Boy Scouts, 530 U.S.
at 647 (citation omitted). In order to support a claim for such
association, the “group must engage in some form of expres-
sion, whether it be public or private.” Id. at 648. In Boy
Scouts, the Court held that the Boy Scouts organization
engaged in expressive activity where their general mission
was “to instill values in young people.” Id. at 649-50. The
Boy Scouts’ official policy was that homosexuality was “in-
consistent with the values it seeks to instill in its youth mem-
bers.” Id. at 654. The Court held that applying New Jersey’s
public accommodations law to require the Boy Scouts to read-
mit James Dale, a homosexual male, as an assistant scoutmas-
ter violated the Boy Scouts’ First Amendment right to
freedom of association. Id. at 644. The Court stated that “the
presence of Dale as an assistant scoutmaster would just as
surely interfere with the Boy Scouts’ choice not to propound
10
Rubio was a criminal case in which the appellant argued that a search
warrant, which authorized the seizure of “indicia of membership in or
association with the Hell’s Angels [Motorcycle Club],” violated his First
Amendment right to freedom of association. Rubio, 727 F.2d at 790. This
court summarily concluded that the First Amendment protected the Hells
Angels’ right to associate with one another but went on to state that the
criminal investigation was not prohibited where it interfered with First
Amendment interests. Id. This court did not analyze the issue of whether
the Hells Angels engaged in sufficient expressive activity. As a result, the
Rubio decision contains no factual background and/or analysis as to the
nature and purpose of the Hells Angels motorcycle club.
4784 VILLEGAS v. CITY OF GILROY
a point of view contrary to its beliefs.” Id. at 654. The Court
recognized that “associations do not have to associate for the
‘purpose’ of disseminating a certain message in order to be
entitled to the protections of the First Amendment. An associ-
ation must merely engage in expressive activity that could be
impaired in order to be entitled to protection.” Id. at 655.
[5] In IDK, Inc. v. Clark County, 836 F.2d 1185 (9th Cir.
1988), this court recognized that “[t]he First Amendment’s
freedom of association protects groups whose activities are
explicitly stated in the amendment: speaking, worshiping, and
petitioning the government.” Id. at 1192 (citing Roberts v.
U.S. Jaycees, 468 U.S. 609, 622-23 (1984)). We do not have
such activity in this case.
[6] The plaintiffs were members of a motorcycle club
whose stated purpose was to ride motorcycles, promote good
will among disparate community groups and raise money for
charities. When asked, during his deposition, whether the
plaintiffs advocated any political, religious, or other view-
points, appellant Villegas answered “no.”
[7] There is no evidence that the plaintiffs’ club engaged in
the type of expression that the First Amendment was designed
to protect. As the Supreme Court stated, an organization must
“engage in expressive activity that could be impaired in order
to be entitled to protection.” Id. at 655. Here, the plaintiffs
were not engaged in any sort of “expressive activity that could
be impaired.” Id. Further, even if this court were to conclude
that the plaintiffs’ charity work and their promotion of good-
will among disparate community groups amounts to sufficient
expressive activity,11 there is no evidence that at the time they
11
In Boy Scouts, the Court stated that “[i]t seems indisputable that an
association that seeks to transmit such a system of values engages in
expressive activity.” Id. at 650 (citing Roberts v. United States Jaycees,
468 U.S. 609, 636 (1984) (O’Connor, J., concurring) (“Even the training
of outdoor survival skills or participation in community service might
VILLEGAS v. CITY OF GILROY 4785
entered the festival, the plaintiffs were engaged in such activi-
ties. In addition, there is no evidence in this case that the
defendants’ actions in any way violated the plaintiffs’ right to
associate with one another or to pursue their stated purposes
of riding motorcycles, giving to charity and promoting good
will.12 The defendants’ refusal to permit the plaintiffs access
to the festival only limited the plaintiffs’ access to a particular
location; a location that had no relation to the purposes under-
lying their association with one another.
[8] The court concludes that the plaintiffs did not engage in
the kind of expressive conduct that would support a violation
of the First Amendment’s right to freedom of association.
AFFIRMED.
become expressive when the activity is intended to develop good morals,
reverence, patriotism, and a desire for self-improvement.”). In this case,
although the plaintiffs performed community service, there is no evidence
that their purpose in doing so was to transmit a system of values within
their organization.
12
In Boy Scouts, the Court recognized expressive activity in the organi-
zation’s purpose of “instill[ing] values in young people” where the inter-
pretation of and interference with those values were directly in issue
because of the defendants’ actions.