Fogel v. Collins ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW FOGEL, 
Plaintiff-Appellant,
v.
No. 06-15395
WESLEY COLLINS, Officer; GRASS
D.C. No.
VALLEY POLICE DEPARTMENT;
MICHAEL HOOKER, Officer; JAROD  CV-05-00444-
JOHNSON, Officer; GARY DFL/KJM
MCCLAUGHRY, Officer; GREG OPINION
MCKENZIE, Officer; JASON PERRY,
Officer,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding
Argued and Submitted
October 18, 2007—San Francisco, California
Filed June 27, 2008
Before: Melvin Brunetti, William A. Fletcher, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge William A. Fletcher
7683
7686 FOGEL v. COLLINS
COUNSEL
Stephen A. Munkelt, Nevada City, Nevada, for the appellant.
Gayle K. Tonon, Truckee, California, for the appellees.
OPINION
W. FLETCHER, Circuit Judge:
Police officers of the City of Grass Valley, California,
arrested plaintiff-appellant Matthew Fogel and impounded his
van because of messages painted on the back of the vehicle.
Fogel brought suit against Grass Valley and six police officers
under 42 U.S.C. § 1983, alleging a violation of his First
FOGEL v. COLLINS 7687
Amendment rights. The district court assumed without decid-
ing that Fogel’s First Amendment rights had been violated.
On that assumption, it granted summary judgment for defen-
dants, holding that the City of Grass Valley had not imple-
mented an unconstitutional policy or custom, and that the
police officers were entitled to qualified immunity. We hold
rather than assume that Fogel’s First Amendment rights were
violated. We nevertheless affirm, for the reasons given by the
district court.
I. Background
On May 25, 2004, Sergeant Michael Hooker of the Grass
Valley Police Department received an anonymous phone call
about a parked white Volkswagen van. The caller reported
that messages written on the van frightened her. Sergeant
Hooker located the unattended 1970 van in the lot of an apart-
ment complex. The words “I AM A FUCKING SUICIDE
BOMBER COMMUNIST TERRORIST!” were painted in
block letters on the back of the van above the rear window.
On the rear window was painted “PULL ME OVER!
PLEASE, I DARE YA[.]” Below the window in slightly
smaller letters was the text “ALLAH PRAISE THE
PATRIOT ACT . . . FUCKING JIHAD ON THE FIRST
AMENDMENT! P.S. W.O.M.D. ON BOARD!” A small
American flag was attached to the van below the lettering.
The rest of the van was decorated with slogans and paintings
that had no political or threatening character.
Sergeant Hooker was able to determine that the van
belonged to Matthew Fogel, a 22-year-old resident of Nevada
City, a town four miles away from Grass Valley. Hooker con-
cluded that the messages on the van were just “political sat-
ire” and returned to the police station after taking digital
photographs of the van. Hooker then called his superior,
Defendant Captain Jarod Johnson, who was on back-up on-
call duty. Hooker read Johnson the words on the van. Johnson
disagreed with Hooker’s characterization of the writing as
7688 FOGEL v. COLLINS
mere satire. Johnson was “quite certain that a criminal act had
been committed” and that the van needed to be removed from
its location at the apartment lot.
Captain Johnson ordered Sergeant Hooker to “handle this
as a bomb threat,” citing the high terror alert in the country.
Now, based on Johnson’s instruction, Hooker “determined
that in fact this was not protected speech, but was criminal.”
Hooker assigned the criminal investigation to Defendant Offi-
cer Jason Perry, who contacted the Department of Homeland
Security (“DHS”) and the Federal Bureau of Investigation
(“FBI”). Perry soon learned that Fogel had no criminal his-
tory.
Sergeant Hooker returned to the van, joined by Officer
Perry and defendant Officers Wesley Collins, Gary
McClaughry, and Greg McKenzie. Hooker and Perry found
Fogel fairly easily in an apartment in the complex with
friends. Hooker and Perry asked Fogel about the van, and
Fogel said that he had painted the messages earlier that day.
Hooker, Perry and Fogel then walked out to the parking lot.
Officer Perry asked Fogel to explain the messages on the
back of the van. There is some dispute about Fogel’s
response. The officers contend that Fogel stated he wanted to
“scare people,” and then stated that he wanted to “scare peo-
ple into thinking.” The officers contend further that Fogel said
that he wanted to “terrorize the people of Nevada County like
the Iraqi people are being terrorized by the U.S. military.”
Fogel denies making these statements. Despite these pur-
ported statements, Sergeant Hooker found Fogel to be “mild
mannered,” and Officer McKenzie stated in his deposition
that he “personally didn’t take [the writing] as a threat” and
“[t]he context was not threatening” to him.
Fogel assured the officers that there was no bomb and he
encouraged them to search the van. The search revealed no
bomb, or indeed anything illegal, in the van. Although Cap-
FOGEL v. COLLINS 7689
tain Johnson had directed Sergeant Hooker to treat the situa-
tion as a bomb threat, the officers did not follow the Grass
Valley Police Department’s standard bomb threat procedures
at the scene or during their search of the van.
While they were in the parking lot with Fogel, Officer
Perry received word from DHS that the agency was “familiar
with Fogel . . . as being a local anti government type of per-
son” who was considered a “local nut.” Perry then arrested
Fogel for violation of California Penal Code § 422 for “will-
fully threaten[ing] to commit a crime which will result in
death or great bodily injury to another person”; § 148.1 for a
“false report of secretion of explosive or facsimile bomb”;
and § 415 for the “use[ ] of offensive words in a public place
which are inherently likely to provoke an immediate violent
reaction.”
Sergeant Hooker called a private towing company to
impound the van. He instructed the company not to release
the van until Fogel removed or painted over the writing. Fogel
was told he would have to remove or paint over the entire
message in order to retrieve his vehicle from the impound lot.
No one informed the towing company that a bomb might be
inside because, according to Hooker, “at that point we did not
believe there was one.” Fogel was held in the Grass Valley
jail overnight. The local District Attorney declined to press
charges, and Fogel was released from jail the following morn-
ing. Fogel recovered his van later that day after painting over
the messages with white paint.
Fogel filed a § 1983 suit for damages against the Grass
Valley Police Department and officers Johnson, Hooker,
Perry, Collins, McClaughry, and McKenzie in their individual
capacities. He challenged his arrest and the seizure of his van,
contending that his First, Fourth, and Fourteenth Amendment
rights had been violated. He also brought state-law claims for
false arrest, assault, and battery.
7690 FOGEL v. COLLINS
After discovery, defendants moved for summary judgment,
and Fogel cross-moved for partial summary judgment. The
district court granted summary judgment to all of the defen-
dants. Fogel v. Grass Valley Police Dep’t, 415 F. Supp. 2d
1084, 1090 (E.D. Cal. 2006). The court held that there was a
genuine issue of disputed fact whether the writing on the van
was a true threat and thus unprotected by the First Amend-
ment. Id. at 1088. However, for purposes of qualified immu-
nity, the court assumed that the writing was protected by the
First Amendment and that the individual officers had violated
Fogel’s rights under the amendment. Id. at 1089. It then held
that the individual officers were entitled to qualified immu-
nity. Id. It further held that the City of Grass Valley had not
acted pursuant to an unconstitutional policy or practice. Id. at
1090. Fogel timely appealed the district court’s grant of sum-
mary judgment to defendants.1
II. Standard of Review
We review a district court’s grant of summary judgment de
novo. We draw all legitimate factual inferences in favor of
Fogel, the nonmoving party. Inouye v. Kemna, 504 F.3d 705,
711 (9th Cir. 2007); Blankenhorn v. City of Orange, 485 F.3d
463, 470 (9th Cir. 2007).
III. Individual Officers
We first address Fogel’s claim against the individual police
officers. The district court determined that qualified immunity
shielded the officers’ actions because reasonable officers
could have believed the language was not protected by the
First Amendment. Fogel, 415 F. Supp. 2d at 1089. Police offi-
cers performing discretionary functions within the scope of
1
We consider only Fogel’s First Amendment claim on appeal. Fogel
abandoned any arguments relating to his Fourth Amendment and state-law
claims by failing to argue them in his brief. See Ghahremani v. Gonzales,
498 F.3d 993, 997 (9th Cir. 2007).
FOGEL v. COLLINS 7691
their employment have qualified immunity from civil suit as
long as “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).
A two-step analysis guides our qualified immunity inquiry.
We first ask whether “[t]aken in the light most favorable to
the party asserting the injury . . . the facts alleged show the
officer’s conduct violated a constitutional right.” Saucier v.
Katz, 533 U.S. 194, 201 (2001). If the facts, viewed in this
light, show a constitutional violation, the “sequential step is
to ask whether the right was clearly established.” Id.A. First Amendment Violation
The district court assumed without deciding that the indi-
vidual officers violated Fogel’s First Amendment rights. We
reach that question and hold that the officers did violate his
First Amendment rights. Deciding whether political speech is
protected political hyperbole or an unprotected true threat can
be an issue for a jury, particularly in cases of criminal prose-
cution. Melugin v. Hames, 38 F.3d 1478, 1485 (9th Cir.
1994). However, Saucier instructs us, where possible, to rule
on the constitutional issue in order “to set forth principles
which will become the basis for a holding that a right is
clearly established.” 533 U.S. at 201; see id. at 207 (calling
“important” this “instruction to the district courts and courts
of appeals”); cf. Hurley v. Irish-Am. Gay, Lesbian & Bisexual
Group of Boston, 515 U.S. 557, 567 (1995) (“This obligation
[to review and rule on the facts] rests upon us simply because
the reaches of the First Amendment are ultimately defined by
the facts it is held to embrace . . . .”).
[1] It is well-established that the First Amendment protects
speech that others might find offensive or even frightening.
Speech “may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with the
7692 FOGEL v. COLLINS
conditions as they are, or even stirs people to anger. Speech
is often provocative and challenging.” Terminiello v. City of
Chicago, 337 U.S. 1, 4 (1949). Courts have long recognized
that speech may need to be abrasive or upsetting in order to
draw attention to the speaker’s cause. See NAACP v. Clai-
borne Hardware Co., 458 U.S. 886, 928 (1982) (“Strong and
effective extemporaneous rhetoric cannot be nicely channeled
in purely dulcet phrases.”). We have “a profound national
commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open, and that it may
well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials.” N. Y. Times
Co. v. Sullivan, 376 U.S. 254, 270 (1964).
[2] “The protections afforded by the First Amendment,
however, are not absolute.” Virginia v. Black, 538 U.S. 343,
358 (2003). The Supreme Court has recognized a “true threat”
exception to the First Amendment. See, e.g., Watts v. United
States, 394 U.S. 705, 708 (1969); see also Lovell v. Poway
Unified Sch. Dist., 90 F.3d 367, 371-72 (9th Cir. 1996). A true
threat is “an expression of an intention to inflict evil, injury,
or damage on another” and such speech receives no First
Amendment protection. Planned Parenthood of the
Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290
F.3d 1058, 1075 (9th Cir. 2002) (en banc) (quotation marks
and citation omitted). If the message on Fogel’s van was mere
political hyperbole, it was protected by the First Amendment.
If it was a true threat, it was not.
[3] In most cases where courts have found that speech con-
stituted a true threat, the threatening speech was targeted
against specific individuals or was communicated directly to
the subject of the threat. See, e.g., United States v. Dinwiddie,
76 F.3d 913, 925 (8th Cir. 1996) (finding a true threat when
the defendant sent more than fifty messages to an abortion
clinic director, including: “Robert, remember Dr. Gunn. . . .
This could happen to you. . . . Whoever sheds man’s blood,
by man his blood shall be shed.”); United States v. Bellri-
FOGEL v. COLLINS 7693
chard, 994 F.2d 1318, 1320-23 (8th Cir. 1993) (finding a true
threat when the defendant sent letters to public officials
describing violence he hoped they would suffer if they failed
to act as he directed).
[4] By contrast, speech that can reasonably be characterized
as political rhetoric or hyperbole, particularly such speech not
directed at specific individuals, is protected. In Clairborne
Hardware, the Supreme Court held that the statement “If we
catch any of you going in any of them racist stores, we’re
gonna break your damn neck” was protected by the First
Amendment. 458 U.S. at 902, 928. We summarized the Clair-
borne Hardware decision in Planned Parenthood,
To the extent there was any intimidating overtone,
[the] rhetoric was extemporaneous, surrounded by
statements supporting non-violent action, and pri-
marily of the social ostracism sort. No specific indi-
viduals were targeted. For all that appears, “the
break your neck” comments were hyperbolic vernac-
ular. Certainly there was no history that [anyone]
associated with the NAACP had broken anyone’s
neck who did not participate in, or opposed, [the
cause].
290 F.3d at 1073-74 (emphasis added).
Even ostensibly threatening statements directed at specific
individuals can be protected. For example, we held in Bauer
v. Sampson that a college professor’s statement that “I, for
one, have etched the name . . . and others of her ilk on my
permanent shit list, a two-ton slate of polished granite which
I hope to someday drop in [the new college president’s] head”
was protected speech. 261 F.3d 775, 780, 783-84 (9th Cir.
2001); see also id. at 783 (calling First Amendment protection
for political speech “robust”). The Supreme Court in Watts
addressed speech that had an even more threatening message
if taken literally. There the Court held that the speech of a
7694 FOGEL v. COLLINS
Vietnam War protester who stated at a rally that “[i]f they
ever make me carry a rifle the first man I want to get in my
sights is L.B.J.” was protected. Watts, 394 U.S. at 706-708.
The statement at issue literally threatened the life of the Presi-
dent, yet the Supreme Court held that the First Amendment
protected it as political speech because of the context in which
it was spoken.
This circuit has thus far avoided deciding whether to use an
objective or subjective standard in determining whether there
has been a “true threat.” An objective standard asks whether
it is “reasonably foreseeable . . . to a speaker that the listener
will seriously take his communication as an intent to inflict
bodily harm. This suffices to distinguish a ‘true threat’ from
speech that is merely frightening.” Planned Parenthood, 290
F.3d at 1076. We have also characterized the objective stan-
dard as asking “whether a reasonable person would foresee
that the statement would be interpreted by those to whom the
maker communicates the statement as a serious expression of
intent to harm or assault.” United States v. Orozco-Santillan,
903 F.2d 1262, 1265 (9th Cir. 1990); see also Lovell, 90 F.3d
at 372. The objective standard calls for an examination of the
speech in the “light of [its] entire factual context, including
the surrounding events and reaction of the listeners.” Orozco-
Santillan, 903 F.2d at 1265; see also Bellrichard, 994 F.2d at
1321 (focusing the inquiry on the context of the speech).
This line of cases and the objective standard were called
into question by the Supreme Court’s statement in Black that
“ ‘[t]rue threats’ encompass those statements where the
speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence to a particular
individual or group of individuals,” 538 U.S. at 359. Follow-
ing Black, we applied a subjective standard in United States
v. Cassel, 408 F.3d 622, 633 (9th Cir. 2005). We “conclude[d]
that speech may be deemed unprotected by the First Amend-
ment as a ‘true threat’ only upon proof that the speaker sub-
jectively intended the speech as a threat.” Id.FOGEL v. COLLINS 7695
We have since analyzed speech under both an objective and
a subjective standard. In United States v. Stewart, 420 F.3d
1007, 1015 (9th Cir. 2005), the defendant stated that “he
wanted to target a judge and ‘string the motherfucker up and
cut her throat, his throat, and make it like a copycat so that
people would do the same thing.’ ” We found it unnecessary
to choose between an objective and subjective standard
because the speech constituted a true threat under either stan-
dard. Id. at 1018-19. As in Stewart, it is unnecessary in this
case to choose between an objective and subjective standard,
for we conclude that Fogel’s speech was protected under
either standard.
[5] We examine the totality of the message on Fogel’s van
in light of the full context available to someone observing the
van. See Planned Parenthood, 290 F.3d at 1067; see also
Orozco-Santillan, 903 F.2d at 1265. Applying the objective
standard, we hold that “a reasonable person would [not] fore-
see that the statement [on the van] would be interpreted by
those to whom [Fogel] communicates the statement as a seri-
ous expression of intent to harm or assault.” Id. A reasonable
person would expect that an observer of Fogel’s van would
see an old Volkswagen van covered with artwork, an Ameri-
can flag, and an obviously satiric or hyperbolic political mes-
sage. The First Amendment and USA PATRIOT Act
references are overtly political speech, and reasonable observ-
ers would be hard-pressed to believe that an actual suicide
bomber would so boldly announce his presence and inten-
tions. The remainder of the van displayed innocuous images
and phrases, including some with spiritual meaning, created
through the artistic endeavors of Fogel and his friends.
[6] When we take into account the entire context of Fogel’s
statements on the van, it is hard to see how any reasonable
observer would have believed the statements were serious
expressions of an intent to cause harm. Captain Johnson inter-
preted the statements on the van as a bomb threat, but when
he instructed Sergeant Hooker to treat it in that manner, he
7696 FOGEL v. COLLINS
was relying on only a telephone description. That is, Johnson
failed to see the speech in the context of the van’s full appear-
ance, and the “textual context” of how the speech was com-
municated is key. See Bellrichard, 994 F.2d at 1323.
The actions of the officers who actually saw the van and its
message make clear that reasonable people would not have
understood — and did not understand — the speech as a true
threat. After first viewing the van, Sergeant Hooker inter-
preted the message as satire until Captain Johnson instructed
him to treat it as a crime. The officers at the scene did not fol-
low bomb threat procedures, indicating that they saw no rea-
son to take the message seriously. It makes no difference that
the speech, taken literally, may have communicated a threat.
See Watts, 394 U.S. at 708. Understood in its full context, no
reasonable person would have expected that viewers would
interpret Fogel’s political message as a true threat of serious
harm. See Lovell, 90 F.3d at 372.
Applying the subjective standard, we hold that Fogel did
not intend his statements to threaten serious harm to anyone.
In his deposition, he explained that his goal was:
to express disagreement . . . with the Patriot Act, and
I wanted to display the need to express yourself and
use your rights, especially when something like the
Patriot Act is working to directly take those rights
away and let people know that you still want those
rights by exercising them. I wanted to express frus-
tration . . . and I figured this was a safe, healthy way
to do that.
Fogel also explained how he envisioned others would inter-
pret the van:
It seemed to me impossible to construe . . . that
someone was actually an Islamic extremist with any
reason or desire to do harm to anyone. It seemed
FOGEL v. COLLINS 7697
pretty plain to me that it’s a joke and it’s ironic and
it’s backwards, and that’s just to get people to think
about how backwards some of our government’s rea-
soning is.
[7] There is virtually no evidence that Fogel subjectively
intended the speech as a true threat of serious harm. See Cas-
sel, 408 F.3d at 633. The officers noted that Fogel was “mild-
mannered” and did not have a threatening presence. None of
the officers interpreted Fogel’s words or actions as threaten-
ing. Even Fogel’s purported statement in the parking lot that
he intended to scare people — to scare them into thinking, or
to scare them in the same way the United States government
is scaring Iraqi citizens — is consistent with Fogel’s conten-
tion that he intended his message to be satirical. Fogel’s goal
of shocking or “scaring” observers of the van into reflecting
on political events is exactly the kind of “unpleasantly sharp
attack[ ] on government and public officials” the First
Amendment welcomes and protects. See N.Y. Times Co., 376
U.S. at 270.
[8] We conclude that Fogel’s message constituted, at most,
somewhat hyperbolic rhetoric on a matter of public concern.
The message was not directed toward any particular person
and was communicated as a protest against government pol-
icy. Fogel wanted to use his First Amendment rights to protest
against what he saw as an attack on those very rights.
[9] We therefore conclude that the message communicated
on Fogel’s van was protected by the First Amendment, and
that the police officers of Grass Valley violated Fogel’s First
Amendment rights by arresting him, impounding the van, and
requiring him to paint over the message before allowing him
to retrieve the van.
B. Clearly Established
We next address whether the law, as applied to the facts of
this case, was clearly established with sufficient clarity at the
7698 FOGEL v. COLLINS
time of the incident to permit an award of damages against the
individual officers. We agree with the district court that it was
not.
[10] Our inquiry focuses on the precise circumstances of a
particular case as well as the state of the law at the time of the
alleged violation. Inouye, 504 F.3d at 712. We engage in an
“objective but fact-specific inquiry.” Id. The standard for
qualified immunity is objective. An officer’s subjective
understanding of the constitutionality of his or her conduct is
irrelevant. Id.; see also Harlow, 457 U.S. at 818. For a legal
principle to be clearly established, it is not necessary that “the
very action in question has previously been held unlawful.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). Rather, a
clearly-established right exists if “in the light of pre-existing
law the unlawfulness [is] apparent.” Wilson v. Layne, 526
U.S. 603, 615 (1999) (quoting Anderson, 483 U.S. at 640). In
other words, there must be some parallel or comparable fac-
tual pattern to alert an officer that a series of actions would
violate an existing constitutional right, but the facts of already
decided cases do not have to match precisely the facts with
which an officer is confronted. See Hydrick v. Hunter, 500
F.3d 978, 989 (9th Cir. 2007). The matching of fact patterns
demands only a level of particularity such “ ‘that a reasonable
official would understand that what he is doing violates th[e]
right.’ ” Saucier, 533 U.S. at 202 (quoting Anderson, 483 U.S.
at 640). “[I]f officers of reasonable competence could dis-
agree on [the] issue, immunity should be recognized.” Malley
v. Briggs, 475 U.S. 335, 341 (1986); see Coady v. Steil, 187
F.3d 727, 734 (7th Cir. 1999).
Although we have concluded that the officers violated the
First Amendment when they arrested Fogel, impounded his
van, and forced him to remove his message, we cannot say
that existing precedents would have alerted the police officers
that we would find a violation. See Galvin v. Hay, 374 F.3d
739, 745-46 (9th Cir. 2004); see also Clement v. City of Glen-
dale, 518 F.3d 1090, 1096 (9th Cir. 2008).
FOGEL v. COLLINS 7699
[11] As the district court pointed out, in no case had a court
held on identical or closely comparable facts that the speech
was protected by the First Amendment. That is, in May 2004,
when the officers acted, there was no reported case in which
a person in the post-September 11 environment satirically
proclaimed himself or herself to be a terrorist in possession of
weapons of mass destruction. We do not, by our invocation of
September 11, 2001, suggest that the First Amendment pro-
vides less protection than before September 11. Rather, we
recognize that what might previously have been understood as
relatively harmless talk might, in the immediate aftermath of
September 11, have been understood to constitute a real
threat.
Fogel cites Watts as a case that should have put the officers
on notice that they were infringing his First Amendment
rights. In Watts, the protester’s “threat” against President
Johnson was uttered at a large political rally and was condi-
tional. Watts, 394 U.S. at 707. However, none of the officers
involved with Watts took his statements seriously, and his
audience also understood his rhetoric as pure hyperbole to
make a political point. See id. at 707-08.
[12] But in this case, at least a portion of Fogel’s audience
reacted very differently. The caller who alerted the police to
the presence of Fogel’s van in the parking lot was clearly
worried by the language on the van and by the threat that it
or its owner might pose. Further, there is evidence that Cap-
tain Johnson, and eventually Sergeant Hooker, felt that the
van (and its owner) were making a true threat. Sergeant
Hooker described his belief that Fogel could be “unstable,”
and Officer Perry relayed to the other officers the information
that the DHS thought that Fogel was a “local nut.” The test
for qualified immunity is whether any reasonable officer
would make the constitutional error in question, not whether
a reasonable person would. We cannot conclude that at the
time of the incident, all reasonable officers would have con-
cluded that Fogel’s speech was protected by the First Amend-
7700 FOGEL v. COLLINS
ment. See Malley, 475 U.S. at 341; see also Egolf v. Witmer,
421 F. Supp. 2d 858, 860-61, 876-78 (E.D. Pa. 2006) (con-
cluding that qualified immunity protected state police troopers
from liability for arresting nearly-nude protesters at a political
rally); Olaniyi v. District of Columbia, 416 F. Supp. 2d 43, 55
(D.D.C. 2006) (finding that the First Amendment did not pro-
tect the plaintiff’s “political speech devised in response to the
war on terror” (internal quotation marks and citations omit-
ted)).
[13] We therefore hold that despite their violation of
Fogel’s First Amendment rights, qualified immunity protects
the individual officers from an award of damages.
IV. Municipal Liability
Fogel also challenges the district court’s ruling that the
Grass Valley Police Department was entitled to summary
judgment. See Fogel, 415 F. Supp. 2d at 1089-90. A munici-
pality is liable for the violation of constitutional rights if a city
officer’s conduct is directly attributable to the city’s policy or
custom. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S.
658, 691-94 (1978). The district court held that Fogel offered
no proof of an unconstitutional official policy and failed to
show that any of the defendant officers were policymaking
officials. Fogel, 415 F. Supp. 2d at 1090. We agree.
A municipality cannot be held liable under a respondeat
superior theory. Monell, 436 U.S. at 691. But liability can
attach if the municipality caused a constitutional violation
through official policy or custom, even if the constitutional
violation occurs only once. See id. at 694; Christie v. Iopa,
176 F.3d 1231, 1235 (9th Cir. 1999). For purposes of liability
under Monell, a “policy” is “a deliberate choice to follow a
course of action . . . made from among various alternatives by
the official or officials responsible for establishing final pol-
icy with respect to the subject matter in question.” Fairley v.
Luman, 281 F.3d 913, 918 (9th Cir. 2002) (per curiam) (cita-
FOGEL v. COLLINS 7701
tion and internal quotation marks omitted; alteration in origi-
nal). A municipality is also liable if a policymaking official
delegates his or her discretionary authority to a subordinate,
and the subordinate uses that discretion. See Menotti v. City
of Seattle, 409 F.3d 1113, 1147-48 (9th Cir. 2005); City of St.
Louis v. Praprotnik, 485 U.S. 112, 126-27 (1988).
[14] Fogel has provided no evidence that Grass Valley
maintained an official policy of suppressing political speech
protected by the First Amendment or that any final policy-
making official made a decision to violate his rights. Fogel
also has not established that any of the officers involved with
his arrest were official policymakers with final decision mak-
ing authority for Grass Valley, or that any official policy-
maker “either delegated that authority to, or ratified the
decision of, a subordinate.” See Ulrich v. City & County of
San Francisco, 308 F.3d 968, 985 (9th Cir. 2002); see also
Monell, 436 U.S. at 694; Praprotnik, 485 U.S. at 126-27. His
municipal liability claim therefore fails.
V. Conclusion
We hold that the individual defendants in this case violated
Fogel’s First Amendment rights by arresting him, impounding
his van, and making him paint over his message. We affirm
the district court’s decision that qualified immunity protects
these defendants from a claim for damages. We also affirm
the district court’s decision that the City of Grass Valley did
not violate Fogel’s First Amendment rights.
AFFIRMED.