Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Department ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIO-ETHICAL REFORM, 
INC.; PAUL KULAS; THOMAS
PADBERG,
Plaintiffs-Appellants,
v.
LOS ANGELES COUNTY SHERIFF
DEPARTMENT; LEROY D. BACA, in
his official capacity as Sheriff;
XAVIER R. AGUILAR, individually;
XAVIER R. AGUILAR, in his official No. 05-55294
capacity as Sergeant; DAVE
DESPOT, individually; DAVE  D.C. No.
CV-03-00386-GLT
DESPOT, in his official capacity as
Deputy; MARK DARLING, OPINION
individually; MARK DARLING, in his
official capacity as Deputy; MARK
C. REPCIK, individually; MARK C.
REPCIK, in his official capacity as
Deputy; ART ROBERTS,
individually; ART ROBERTS, in his
official capacity as an
administrative official, Dodson
Middle School,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Gary L. Taylor, District Judge, Presiding
Argued and Submitted
February 12, 2007—Pasadena, California
7983
7984 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
Filed July 2, 2008
Before: Harry Pregerson, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Pregerson
7988 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
COUNSEL
Robert J. Muise (argued), Thomas More Law Center, Ann
Arbor, Michigan; James A. Hayes, Cummins & White LLP,
Newport Beach, California, for the plaintiffs-appellants.
Jennifer A.D. Lehman (argued), Deputy County Counsel,
Raymond G. Fortner, County Counsel, Los Angeles, Califor-
nia, for defendants-appellees Los Angeles County Sheriff’s
Department.
Julie Mullane (argued), Gary Robert Gibeaut, Nancy Mahan-
Lamb, Lisa J. Brown, Gibeaut, Mahan & Briscoe, Los Ange-
les, California, for defendant-appellee Art Roberts.
OPINION
PREGERSON, Circuit Judge:
Plaintiffs drove a truck that displayed enlarged, graphic
photographs of early-term aborted fetuses around the perime-
ter of a public middle school in Rancho Palos Verdes, Califor-
nia. Deputy Sheriffs were dispatched to the school. Plaintiffs
contend that the officers violated their First Amendment
rights by ordering Plaintiffs to remove their truck from an
area adjacent to the school. Plaintiffs also contend that the
officers violated their Fourth Amendment rights by detaining
Plaintiffs for an unreasonable time and by searching their
vehicle without consent.
Plaintiffs brought this action under 42 U.S.C. § 1983 seek-
ing damages and injunctive and declaratory relief for violation
of their First and Fourth Amendment rights. The district court
held that the Deputy Sheriffs and Dodson Middle School
Assistant Principal Art Roberts were entitled to qualified
immunity and dismissed the damages claims against them. In
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 7989
addition, the court dismissed the lawsuit against Los Angeles
County Sheriff Leroy D. Baca, a redundant defendant. After
considering cross-motions for summary judgment, the district
court granted summary judgment in favor of Defendants on
the remaining First and Fourth Amendment claims. Plaintiffs
timely appealed these orders.
We have jurisdiction under 28 U.S.C. § 1291. For the rea-
sons set forth below, we reverse the district court’s orders (1)
granting Defendants’ summary judgment motion on all the
issues in the case, and (2) denying Plaintiffs’ summary judg-
ment motion with respect to Plaintiffs’ First Amendment
claim and Fourth Amendment Claim for unreasonable deten-
tion. We affirm the district court’s order (1) dismissing Sher-
iff Leroy D. Baca and (2) granting qualified immunity to the
individual defendants on the First Amendment claim. We
remand for the district court to resolve Plaintiffs’ conspiracy
claim and request for injunctive relief.
I. BACKGROUND
A. Facts
Plaintiff Center for Bio-Ethical Reform (Bio-Ethical
Reform) is a non-profit organization whose main purpose is
to promote “prenatal justice and the right to life for the
unborn, the disabled, the infirm, the aged, and all vulnerable
peoples through education and the development of innovative
educational programs.” One of the educational programs is
called the “Reproductive Choice Campaign.” With this cam-
paign, Bio-Ethical Reform seeks to “expose as many people
as possible to the reality of abortion” by displaying large,
graphic photographs of first-term aborted fetuses on the sides
of trucks. The trucks often drive on surface streets and free-
ways, but Bio-Ethical Reform employees and volunteers
sometimes take the trucks to specified places to target particu-
lar audiences.
7990 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
Middle school and high school students are a common tar-
get audience. Bio-Ethical Reform conducts its campaign at
such schools because it believes its message will discourage
teenage abortions. Bio-Ethical Reform also believes that “stu-
dents who are old enough to have an abortion are old enough
to see one.” Bio-Ethical Reform personnel arrive at the start
of the academic day so that students will see Bio-Ethical
Reforms’s enlarged photographic images of first-term aborted
fetuses as they arrive for school.
Gregg Cunningham, Bio-Ethical Reform’s Executive
Director, acknowledged in his deposition that he has seen stu-
dents “faint,” “become physically ill,” “weep,” “avert their
gaze,” and “leave the room” in response to these pictures.
Cunningham said that the “typical” reaction is disbelief. He
defended Bio-Ethical Reform’s display of aborted fetuses,
saying that “[s]tudents are routinely exposed to disturbing
images, whether it’s airlines exploding into skyscrapers or
choose your atrocity.” Cunningham also asserted that expos-
ing children to such pictures is the best way to teach them
about the ethical issues involving abortion: “you can’t teach
inexpressively horrific historical fact in exclusive reliance on
the written or spoken word. Teachers who teach about racial
injustice use pictures of black people being beaten to their
knees for trying to register to vote.”
On March 24, 2003, Plaintiffs Paul Kulas, a Bio-Ethical
Reform employee, and Thomas Padberg, a Bio-Ethical
Reform volunteer, drove to Dodson Middle School in Rancho
Palos Verdes, California. Kulas drove a truck that displayed
the photographic images of aborted fetuses and Padberg drove
an escort “security vehicle.” The security vehicle was a white
Ford Crown Victoria sedan equipped with a security cage,
red-and-amber flashing lights, push bars, and antennae
mounted on the roof. The two men arrived at the school at
about 7:30 a.m. — about thirty minutes before classes began.
They then drove on public streets around the perimeter of the
school.
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 7991
Plaintiffs’ graphic display quickly caused concern among
school officials. Defendant Art Roberts, an assistant principal
at Dodson Middle School, identified traffic as one of his pri-
mary concerns. According to him, 85 to 95 percent of Dod-
son’s 2000 students arrive by bus or car between 7:15 a.m.
and 8:00 a.m. The students’ arrival causes “heavy traffic”
around the school. This traffic can become a safety hazard
when drivers or pedestrians become upset, angry, or dis-
tracted. At a preliminary hearing, Roberts testified that during
the time he had worked at Dodson Middle School, vehicles on
streets around the school had struck five children and killed
two.
On the day Plaintiffs were at Dodson Middle School, Assis-
tant Principal Roberts observed some children stopping on the
sidewalks and staring at the photographs of aborted fetuses,
while others momentarily stood in the middle of the street.
Faculty members also reported “abnormal” difficulty getting
children onto the campus.
Assistant Principal Roberts identified additional concerns.
He saw a number of children express anger over Plaintiffs’
graphic display. He also overheard a group of boys planning
to throw rocks at the truck. The group disbanded only after
Roberts confronted them. Assistant Principal Roberts
observed two or three girls crying. He also said that at least
one class spent time discussing the truck’s displayed images
of aborted fetuses. Nevertheless, Assistant Principal Roberts
said the school had a “fairly normal opening” and that all stu-
dents he could see were on the campus by the start of classes
at 8:01 a.m.
School officials contacted the Sheriff’s Department at
about 7:50 a.m. The dispatcher sent a text message to Deputy
Sheriffs Mark Darling and Mark Repcik, who were driving
separate vehicles. The message stated that an “[a]nti-abortion
truck with offensive language and pictures is circling the
school and videotaping the school and surrounding area.” The
7992 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
Sheriff’s Department station desk also radioed Deputy Repcik
and told him a “large white truck [was] driving [around] the
middle school [with] very graphic pictures on the sides and
[was] disrupting the school.”
At 8:05 a.m., Deputy Sheriffs Darling and Repcik stopped
Plaintiff Kulas, who was driving the display truck, and Plain-
tiff Padberg, who was driving the “security vehicle.” Accord-
ing to Kulas, Deputy Darling told him that the Deputy
Sheriffs stopped the two vehicles because they were “driving
these pictures around the school with offensive language, and
. . . scaring kids . . . .” During the stop, no Deputy Sheriff
drew his gun or handcuffed Kulas or Padberg. The deputies
allowed Kulas and Padberg to move freely about the immedi-
ate area and talk to each other for the duration of the stop.
Thirty minutes later, Deputy Sheriff Sergeant Xavier Agui-
lar arrived. According to Deputy Sheriffs Darling and Repcik,
they summoned Sergeant Aguilar, their supervisor, to the
scene because they had never dealt with a comparable situa-
tion. Deputy Sheriff Dave Despot, the liaison to Dodson Mid-
dle School, was also summoned to the scene. He arrived
between fifteen and thirty minutes after Aguilar arrived. Des-
pot took photographs of the security vehicle and the truck. He
then went into the school to speak with Assistant Principal
Roberts.
At some point, Deputy Sheriff Darling entered the security
vehicle to activate the switch for the flashing red-and-amber
lights. Then, with Padberg’s permission, Darling searched the
vehicle for weapons. The record does not indicate whether
there were two discrete searches or only one.
Eventually, Assistant Principal Roberts accompanied Dep-
uty Despot back to the scene, and, after reading California
Penal Code § 626.8 to Kulas and Padberg, told them that they
must leave the area around the school. Kulas and Padberg
promptly left the area at 9:20 a.m. Plaintiffs assert that,
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 7993
because of fear of arrest, they have taken their Reproductive
Choice Campaign to only one other school in Los Angeles
County since the March 24, 2003 incident.
B. Procedural History
Plaintiffs filed this 42 U.S.C. § 1983 suit on April 17, 2003.
Their complaint seeks nominal damages from Assistant Prin-
cipal Roberts, and from Deputy Sheriffs Repcik, Darling,
Despot, and Sergeant Aguilar. Plaintiffs sought an injunction
to restrain the four Deputy Sheriffs, Assistant Principal Rob-
erts, Sheriff Baca (in his official capacity), and the Los Ange-
les County Sheriff’s Department from enforcing § 626.8
against Plaintiffs’ abortion speech activities. Finally, Plaintiffs
sought a declaration that § 626.8 is unconstitutional as applied
to Plaintiffs’ activities. Plaintiffs do not seek monetary dam-
ages from the Sheriff’s Department.
The district court granted the individual defendants’1
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), holding that these defendants were entitled to quali-
fied immunity.2 The district court dismissed Sheriff Baca as
a redundant defendant. On February 10, 2005, the district
court granted summary judgment for all defendants and
denied summary judgment for Plaintiffs. This timely appeal
followed.
II. STANDARD OF REVIEW
A district court’s decision on cross-motions for summary
1
The phrase “individual defendants,” refers to the defendants sued in
their individual capacity: Deputies Repcik, Darling and Despot, Sergeant
Aguilar, and Assistant Principal Roberts.
2
The district court did not specify whether qualified immunity applied
only to the First Amendment claims or to all claims. The court declined
to clarify the scope of its grant of immunity in the summary judgment
order, instead holding that the issue was moot.
7994 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
judgment is reviewed de novo. ACLU of Nev. v. City of Las
Vegas, 466 F.3d 784, 790 (9th Cir. 2006). Construing the evi-
dence in the light most favorable to the nonmoving party, we
must determine whether genuine issues of material fact exist.
Id. When presented with cross-motions for summary judg-
ment, we review each motion for summary judgment sepa-
rately, giving the nonmoving party for each motion the benefit
of all reasonable inferences. Id. at 790-91.
III. FIRST AMENDMENT ISSUES
Plaintiffs contend that the application of § 626.8 under the
circumstances presented here violated their First Amendment
rights. We have serious concerns about the constitutionality of
the statute as applied. We need not decide, however, whether
the statute as applied is unconstitutional because we conclude
that the California courts would construe the statute narrowly
so as not to apply to Plaintiffs’ conduct.
A. Applicability of Penal Code § 626.8
1. First Amendment concerns
Plaintiffs sought to express their anti-abortion message on
a public street, a traditional public forum. See Frisby v.
Schultz, 487 U.S. 474, 481 (1988) (“[A]ll public streets are
held in the public trust and are properly considered traditional
public fora.”); see also PeTA v. Rasmussen, 298 F.3d 1198,
1204 (10th Cir. 2002) (holding that the sidewalks near a pub-
lic school are a traditional public forum). Generally, content-
based speech restrictions in public fora are subject to strict
scrutiny. Flint v. Dennison, 488 F.3d 816, 830 (9th Cir. 2007).
[1] The government may, however, impose reasonable
“time, place, or manner” regulations on speech in public fora,
provided the regulations “are justified without reference to the
content of the regulated speech, . . . are narrowly tailored to
serve a significant governmental interest, and . . . leave open
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 7995
ample alternative channels for communication of the informa-
tion.” Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (quoting Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288, 293 (1984)). We therefore first address whether
the application of § 626.8 to Plaintiffs’ display of photographs
of aborted fetuses outside Dodson Middle School would qual-
ify as a content-neutral time, place, or manner regulation. We
conclude that it is questionable whether the statute, if it
applies to Plaintiffs’ conduct in this case, would satisfy the
first criterion — that it be “justified without reference to the
content of the regulated speech.” Id.
[2] We previously noted that a law “is content-based if
either the main purpose in enacting it was to suppress or exalt
speech of a certain content, or it differentiates based on the
content of speech on its face.” ACLU, 466 F.3d at 793. Defen-
dants argue that § 626.8 is content-neutral because it is justi-
fied by a purpose unrelated to the content of the message —
namely, the “compelling interest in having an undisrupted
school session conducive to the students’ learning.” See
Grayned v. City of Rockford, 408 U.S. 104, 119 (1972).3
[3] The language of § 626.8 does not indicate an intent to
suppress speech of a certain content. That lack of purpose,
however, does not render application of the statute to Plain-
tiffs’ speech content-neutral. If the statute, as read by the
police officers on the scene, would allow or disallow speech
3
We note that in this case, unlike in Grayned, the school setting alone
does not justify the restriction applied to Plaintiffs. Grayned identified dis-
ruptions of “normal school activities” as “boisterous demonstrators who
drown out classroom conversation, make studying impossible, block
entrances, or incite children to leave the schoolhouse.” Grayned, 408 U.S.
at 118-19. Further emphasizing this focus on classroom interruption,
Grayned noted with approval that the ordinance did not restrict “expres-
sive activity before or after the school session, while the student/faculty
‘audience’ enters and leaves the school,” id. at 120 — the precise situation
presented here. The school setting here thus provides no authority to
engage in otherwise impermissible restrictions.
7996 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
depending on the reaction of the audience, then the ordinance
would run afoul of an independent species of prohibitions on
content-restrictive regulations, often described as a First
Amendment-based ban on the “heckler’s veto.”4 See Bachel-
lar v. Maryland, 397 U.S. 564, 567 (1970) (“[I]t is firmly set-
tled that under our Constitution the public expression of ideas
may not be prohibited merely because the ideas are them-
selves offensive to some of their hearers, or simply because
bystanders object to peaceful and orderly demonstrations.”)
(quotation marks and citations omitted); see also, e.g., Good-
ing v. Wilson, 405 U.S. 518, 527 (1972); Cox v. Louisiana,
379 U.S. 536, 551-52 (1965); Terminiello v. City of Chicago,
337 U.S. 1, 4-5 (1949). Thus, as the Supreme Court has made
clear, the government cannot silence messages simply
because they cause discomfort, fear, or even anger:
[I]n our system, undifferentiated fear or apprehen-
sion of disturbance is not enough to overcome the
right to freedom of expression. Any departure from
absolute regimentation may cause trouble. Any vari-
ation from the majority’s opinion may inspire fear.
Any word spoken, in class, in the lunchroom, or on
the campus, that deviates from the views of another
person may start an argument or cause a disturbance.
But our Constitution says we must take this risk . . . .
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
508 (1969).
[4] The disruptions caused by the Plaintiffs’ conduct were
all a result of the students’ reactions to Plaintiffs’ message.
Assistant Principal Roberts stated that he saw two or three
girls cry and that he heard several angry boys discuss throw-
4
The term “heckler’s veto” first appeared in a footnote in Brown v. Lou-
isiana, 383 U.S. 131, 133 n.1 (1966). We use this term to describe restric-
tions on speech that stem from listeners’ negative reactions to a particular
message.
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 7997
ing rocks at Plaintiffs’ truck. Roberts also stated that the fac-
ulty had more difficulty than normal getting children into
classes. There is some evidence that students discussed Plain-
tiffs’ display of images of first-term aborted fetuses during
class time. Finally, the children did not go into the school as
quickly as usual. Some students stopped in the street momen-
tarily and stared at the truck, causing traffic congestion. These
incidents were all reactions to the message displayed on
Plaintiffs’ truck.
In Forsyth County v. Nationalist Movement, 505 U.S. 123,
134 (1992), the Supreme Court emphasized that “[l]isteners’
reaction to speech is not a content-neutral basis for regula-
tion” — in other words, the First Amendment does not permit
a heckler’s veto. Forsyth County struck down an ordinance as
unconstitutionally content-based because the statute based
parade fees on the estimated cost of maintaining public order
during the event. Because the size of the fee “depend[ed] on
the administrator’s measure of the amount of hostility likely
to be created by the speech based on its content,” the ordi-
nance unconstitutionally burdened speech that was “unpopu-
lar with bottle throwers.” Id.As the cases cited above indicate, Forsyth County was not
the first or only case to hold that a regulation that depends
upon listeners’ reaction to speech is not a content-neutral reg-
ulation. In Cox v. Louisiana, for example, the Supreme Court
held that police could not justify shutting down a civil rights
demonstration on public sidewalks as a breach of the peace on
the ground that there was a “fear of violence . . . based upon
the reaction of the group of white citizens looking on from
across the street.” 379 U.S. at 550. Like Forsyth County, Cox
rested on the premise that “constitutional rights may not be
denied simply because of hostility to their assertion or exer-
cise.” Id. at 551 (quoting Watson v. City of Memphis, 373
U.S. 526, 535 (1963)).
7998 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
The venerable heckler’s veto line of cases does not align
perfectly with a standard this court has recently used to help
determine whether a regulation is content-based: whether “a
law enforcement officer must read a [communication’s] mes-
sage to determine if the [communication] is exempted from
the ordinance.” ACLU, 466 F.3d at 795-96.5
[5] The “read the message” test, however, cannot encom-
pass the universe of content-based statutes because the test
does not fully account for the heckler’s veto line of cases.
Here, the government did not prospectively gauge the effect
of the message (and ban it accordingly), but instead waited
for, and then responded to, listeners’ reactions. Whether pro-
spectively, as in Forsyth County, or retrospectively, as in the
case before us, the government may not give weight to the
audience’s negative reaction.6
[6] To account for Cox and similar cases, our inquiry must
focus on the reason for the government’s restriction of speech.
If listeners react to speech based on its content and the gov-
ernment then ratifies that reaction by restricting the speech in
response to listeners’ objections, then the restriction is
content-based. Cf. Ovadal v. City of Madison, 469 F.3d 625,
630 (7th Cir. 2006) (holding that the removal of a protester
carrying large signs on busy highway overpass is content-
based if his “message angered drivers who then reacted and
were distracted from the task of driving safely” but content-
neutral if his “presence on that day and under those driving
conditions created a ‘spectacle’ that led some drivers to be
distracted from the task of safely navigating the Beltline”)
(emphases in original).
5
Whether an officer must read a message is persuasive evidence of an
impermissible content-based purpose, but is not dispositive. ACLU, 466
F.3d at 796 n.12.
6
There is, of course, an exception for certain “fighting words.” See Cha-
plinsky v. New Hampshire, 315 U.S. 568, 573 (1942).
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 7999
Nor is the reaction of listeners a secondary effect of speech
that can be regulated under City of Renton v. Playtime The-
atres, Inc., 475 U.S. 41, 46 (1986). See Boos v. Barry, 485
U.S. 312, 321 (1988) (“The emotive impact of speech on its
audience is not a ‘secondary effect.’ ”); see also Crawford v.
Lungren, 96 F.3d 380, 385 (9th Cir. 1996) (“The Supreme
Court has defined secondary effects as being correlated with,
but not directly a consequence of, the impact of the speech.”)
(emphasis added).
Section 626.8, if it applied to Plaintiffs’ conduct in this
case, would appear to be just the kind of accession to the
heckler’s veto outlawed by the case law. Plaintiffs’ speech
was permitted until the students and drivers around the school
reacted to it, at which point the speech was deemed disruptive
and ordered stopped under § 626.8. This application of the
statute raises serious First Amendment concerns.7
7
We recognize that one of our sister circuits, in a case discussing a
nearly identical statute, has held otherwise. In PeTA v. Rasmussen, 298
F.3d 1198 (10th Cir. 2002), an animal-rights organization staged a protest
outside of a junior high school shortly before the end of classes; a counter-
protest was also held. Id. at 1201. “The protests were not noisy, but some
students allegedly were distracted, stayed late, missed their rides, or
sought to interact with the protesters.” Id. at 1202. The police directed the
protesters to cease, citing a state statute substantively mirroring § 626.8.
The statute did not apply to junior high schools, however, and the police
subsequently admitted their mistake.
The Tenth Circuit nonetheless held that the misapplication of the statute
was content-neutral:
Although the defendants misapplied the statute to PeTA, their
misapplication of the statute was unrelated to the content of
PeTA’s speech. The school also applied the ban to META [the
counter-protesters], which expressed the opposite message from
PeTA. Defendants’ actions were thus content-neutral.
Id. at 1204. We disagree with this analysis. That the statute was applied
to protesters on both sides of the issue demonstrates only that it was
viewpoint-neutral. See Boos, 485 U.S. at 319. Shutting down dueling pro-
tests does not discriminate based on viewpoint, but is nonetheless a
content-based heckler’s veto if the reason for the restriction was that
bystanders were uncomfortable with the controversial content of the mes-
sages.
8000 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
We are mindful that this case involves a special circum-
stance, the presence of children. In particular, the evidence
suggests that children were distracted by the Plaintiffs’ pic-
tures, and this distraction perhaps posed a danger as students
crossed the streets around the school. Children may well be
particularly susceptible to distraction or emotion in the face of
controversial speech, and may not always be expected to react
responsibly. These considerations, among others, might con-
ceivably support the proposition that the heckler’s veto princi-
ple is less sweeping where the targeted audience is children.
There is, however, no precedent for a “minors” exception
to the prohibition on banning speech because of listeners’
reaction to its content.8 It would therefore be an unprece-
dented departure from bedrock First Amendment principles to
allow the government to restrict speech based on listener reac-
tion simply because the listeners are children. At the least,
applying § 626.8 to Plaintiffs’ speech in this case raises a
novel constitutional issue. Unless we create a new exception
to the “heckler’s veto” doctrine (which we do not do), apply-
ing § 626.8 to Plaintiffs’ speech would be unconstitutional.
We decline to create such an exception, in part because we
can reasonably construe § 626.8 as not applicable to the pres-
ent circumstances.9 Where a construction of a statute would
8
There is, however, at least one circumstance in which First Amend-
ment standards have been specially tailored to protect children. See Gins-
berg v. New York, 390 U.S. 629, 640-41 (1968) (relying on the state’s
interest “to protect the welfare of children and to see that they are safe-
guarded from abuses which might prevent their growth into free and inde-
pendent well-developed men[, women] and citizens” to hold that it is
permissible to protect children from being exposed to pornography that
was not obscene) (internal quotations omitted).
9
The California legislature may elect to draft a statute prohibiting dis-
ruptive messages outside school buildings where the disruption threatens
the physical safety of school children while they are coming to, leaving,
or attending school. We do not have before us, and therefore do not decide
the constitutionality of, such a statute.
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8001
raise serious constitutional problems, courts “will construe the
statute to avoid such problems unless such construction is
plainly contrary to the intent of [the legislature].” Edward J.
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988).
Here, if § 626.8 applies only to disruptions caused by the
manner and not the content of speech, our First Amendment
concerns are resolved. A statute that restricts speech only
when it is disruptive because of its manner, not its content, is
an example of content-neutral regulation that has been
affirmed time and again. In Grayned, for example, in dealing
with an anti-noise ordinance, the Supreme Court upheld the
regulation of speech that would — because of its high-decibel
manner of communication, not its content — prevent class-
room teaching or studying.10 408 U.S. at 119. Similarly, we
have narrowed an injunction prohibiting “shouting, scream-
ing, chanting, or yelling” during demonstrations outside an
abortion clinic to specify that such conduct be enjoined only
if it is “in a volume that substantially interferes with the pro-
vision of medical services within the [clinic].” Portland Femi-
nist Women’s Health Ctr. v. Advocates for Life, Inc., 859 F.2d
681, 686-87 (9th Cir. 1988). This narrow interpretation
ensured that the speech was enjoined only if its manner
caused disruption to the clinic’s services, rather than if its
10
The ordinance at issue in Grayned is strikingly similar to § 626.8. The
ordinance there prohibited “willfully mak[ing] or assist[ing] in the making
of any noise or diversion which disturbs or tends to disturb the peace or
good order of such school session or class thereof.” 408 U.S. at 108. The
Supreme Court rejected a constitutional challenge because it concluded
that the state supreme court would construe the ordinance narrowly to pro-
hibit “only actual or imminent interference with the ‘peace or good order’
of the school.” Id. at 111-12. It further held that the ordinance was not “a
vague, general ‘breach of the peace’ ordinance, but a statute written spe-
cifically for the school context, where the prohibited disturbances are eas-
ily measured by their impact on the normal activities of the school.” Id.
at 112. So construed, the ordinance “does not permit punishment for the
expression of an unpopular point of view.” Id. at 113.
8002 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
content upset the patients or staff. Therefore, we must address
whether § 626.8 applies only where the manner, not the con-
tent, of speech near schools is distracting to listeners. If so, we
need not decide the constitutionality of a content-restrictive
statute, for such a statute is not before us.
2. Construing § 626.8
In similar circumstances — that is, to avoid deciding seri-
ous constitutional issues — federal courts have narrowly con-
strued state or local statutes. See, e.g., Frisby, 487 U.S. at
482; Phelps v. Hamilton, 59 F.3d 1058, 1070 (10th Cir. 1995)
(“[Although] federal courts do not have the power to narrow
a state law by disregarding plain language in the statute just
to preserve it from constitutional attack . . . . , we are permit-
ted to construe ambiguous state statutes and to extrapolate the
true meaning of such statutes according to traditional rules of
statutory construction, and then to judge the constitutionality
of such statutes as so construed.”); Cohen v. City of Des
Plaines, 8 F.3d 484, 493 (7th Cir. 1993) (construing a city
ordinance narrowly to avoid Establishment Clause problem);
see also Grayned, 408 U.S. at 111-12 (construing local ordi-
nance narrowly after concluding that the state supreme court
would so construe the ordinance). In our view, the Supreme
Court of California would, were the issue presented to them,
construe § 626.8 to apply only to interference or disruption
caused by the manner of a person’s expressive conduct.
[7] California Penal Code § 626.8 provides, in relevant
part:
(a) Any person who comes into any school building
or upon any school ground, or street, sidewalk or
public way adjacent thereto, without lawful business
thereon, and whose presence or acts interfere with
the peaceful conduct of the activities of the school or
disrupt the school or its pupils or school activities, is
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8003
guilty of a misdemeanor if he or she does any of the
following:
(1) Remains there after being asked to leave
by the chief administrative official of that
school or his or her designated representa-
tive, or by a . . . sheriff or deputy sheriff
....
(2) Reenters or comes upon that place
within seven days of being asked to leave
by a person specified in paragraph (1).
(3) Has otherwise established a continued
pattern of unauthorized entry.
This section shall not be utilized to impinge upon the
lawful exercise of constitutionally protected rights of
freedom of speech or assembly.
Cal. Penal Code § 626.8(a) (emphasis added).
As an initial matter, California courts regularly construe
arguably ambiguous statutes narrowly to avoid First Amend-
ment problems. In doing so, California courts have enunciated
the principle that “the court should construe the enactment so
as to limit its effect and operation to matters that may be con-
stitutionally regulated or prohibited.” People v. Superior
Court (Anderson), 151 Cal. App. 3d 893, 895-96 (Ct. App.
1984) (quoting Welton v. City of Los Angeles, 18 Cal. 3d 497,
505-06 (1976)). For example, in In re Manuel G., 16 Cal. 4th
805, 814 (1997), the California Supreme Court considered a
statute imposing criminal penalties on “[e]very person who
attempts, by means of any threat or violence, to deter or pre-
vent an executive officer from performing any duty imposed
upon such officer by law . . . .” The court agreed with lower
court decisions narrowly construing the statute: “To avoid the
risk of punishing protected First Amendment speech, . . . the
8004 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
term ‘threat’ has been limited to mean a threat of unlawful
violence used in an attempt to deter the officer.” Id. at 814-15;
see also People v. Zimmerman, 15 Cal. App. 4th Supp. 7, 12
(Ct. App. 1993) (“A statute challenged for overbreadth is not
void if its terms are reasonably susceptible to an interpretation
consistent with the Constitution.”); City & County of San
Francisco v. Eller Outdoor Adver., 192 Cal. App. 3d 643, 663
(Ct. App. 1987) (“It is the duty of the courts, wherever possi-
ble, to construe a statute in a manner which is reasonable,
consistent with the statutory purpose, and eliminates doubts as
to its constitutionality.”); Loska v. Superior Court, 188 Cal.
App. 3d 569, 584 (Ct. App. 1986) (“In order to save the ordi-
nance as a whole, we ‘construe the enactment so as to limit
its effect and operation to matters that may be constitutionally
. . . prohibited.’ ”) (alteration in original, quoting Welton, 18
Cal. 3d at 505).
[8] Here, a narrowing construction is invited by the plain
language of § 626.8: “This section shall not be utilized to
impinge upon the lawful exercise of constitutionally protected
rights of freedom of speech or assembly.” The California leg-
islature thus contemplated the possibility that § 626.8 might,
if construed broadly, apply to constitutionally protected
speech, and sought to prevent such an application. Further, the
exclusionary clause is drafted expansively, barring applica-
tions that “impinge,” rather than “violate,” protected speech.
Thus, the legislature seemingly meant to make the statute
inapplicable where First Amendment rights are possibly
affected, even if the statute could validly restrict those rights.11
11
The California legislature sometimes drafts First Amendment savings
clauses more narrowly, so as merely to limit the statute to what is constitu-
tionally permissible. For instance, California Penal Code § 420.1 provides
that it “shall not apply to . . . any person who is engaging in activities pro-
tected by the California Constitution or the United States Constitution.”
The same “shall not apply to” language is used in Penal Code §§ 602(o),
602.1, and 602.8. Similarly, Penal Code § 646.9(f)-(g) provides that
“[c]onstitutionally protected activity is not included within the meaning
of” certain terms in the statutory definition of the crime. This “shall not
apply” and “is not included” language is narrower than the broad “shall
not be used to impinge” language in the statute at issue here. We should
give effect to this difference.
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8005
[9] Finally, apart from the exclusionary clause, the lan-
guage of § 626.8 suggests that it was intended to apply to
manner rather than content of speech. Section 626.8 applies
where the “presence” or “acts” of a person “interfere[s]” with
the school’s activities or “disrupt[s] the school or its pupils.”
The terms “presence” and “acts” indicate that § 626.8 is con-
cerned with the physical aspects of a speaker’s behavior, not
with the content of his speech. Similarly, the words “inter-
fere” and “disrupt” are active verbs that focus on the behavior
of the speaker, not on the reaction of the listeners.
[10] As a whole, the language of § 626.8 does not evidence
any intent to criminalize a person’s behavior based on a lis-
tener’s reaction to the content of his speech. We thus con-
clude that the California courts would construe § 626.8 to
apply to speech only when the disruption caused by the
speaker is caused by the manner of the speech. Controversial
words and images that, because of their content, upset the lis-
tener and cause the listener to behave disruptively are not
covered by the statute.
[11] Under our narrow construction, § 626.8 does not apply
to Plaintiffs’ conduct in driving their trucks around Dodson
Middle School. That conduct was disruptive only because of
the audience’s reaction to the content of the speech. Children
became upset, a few boys talked about throwing rocks, other
children stood in the middle of the street and slowed the entry
of students into school, and at least one class spent time dis-
cussing the photos of fetuses instead of their prescribed
school work. All of these reactions were triggered by the
upsetting message on the truck — not by noise, or physical
obstruction, or any other aspect of Plaintiffs’ activities. Con-
struing § 626.8 as we do, the statute provided no basis to pro-
hibit Plaintiffs from continuing to drive their vehicles around
the school before classes began.
[12] Section 626.8 was the only authority cited by Defen-
dants in asking Plaintiffs to leave, and thus provided the only
8006 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
possible source of a significant governmental interest neces-
sary to restrict Plaintiffs’ speech in a public forum. See Ward,
491 U.S. at 791-92. Misapplying a statute is not a significant
governmental interest. Defendants have suggested no other
significant governmental interest to justify restricting Plain-
tiffs’ speech. We therefore hold that the Deputy Sheriffs vio-
lated Plaintiffs’ First Amendment right of free speech.
B. Qualified Immunity
We next consider whether the district court correctly deter-
mined that the individual defendants were entitled to qualified
immunity for Plaintiffs’ First Amendment claims.12 We
review a grant of qualified immunity de novo. Bias v. Moyni-
han, 508 F.3d 1212, 1218 (9th Cir. 2007).
[13] Qualified immunity involves a two-step inquiry: (1)
whether the officer’s conduct violated a constitutional right;
and (2) whether that right was clearly established when
viewed in the context of this case. See Ganwich v. Knapp, 319
F.3d 1115, 1119 (9th Cir. 2003) (citing Saucier v. Katz, 533
U.S. 194, 201 (2001)). As discussed above, Plaintiffs have
established that Defendants violated their constitutional
rights. We must therefore decide whether those rights were
clearly established.
A right is clearly established if its contours are “sufficiently
clear that a reasonable official would understand that what he
is doing violates that right.” Saucier, 533 U.S. at 202 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Even if the
right is clear, however, we must determine whether the offi-
cers made a reasonable mistake about the law’s requirements.
See id. at 205.
12
As noted above, it is not entirely clear whether the district court
decided this issue on the merits.
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8007
[14] Here, it was clear that the officers could not apply a
time, place or manner restriction on speech to the Plaintiffs’
activities around the school without advancing any significant
state interest by doing so. But the officers could have made
a reasonable mistake in believing that § 626.8 applied to
Plaintiffs’ conduct and thus advanced a significant state inter-
est. Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th
Cir. 1994) (“[A]n officer who acts in reliance on a duly-
enacted statute or ordinance is ordinarily entitled to qualified
immunity.”). There was no case law determining whether
§ 626.8 does or does not apply to the circumstances the offi-
cers faced. See Dittman v. California, 191 F.3d 1020, 1027
(9th Cir. 1999) (defendant entitled to qualified immunity
where she “acted pursuant to a duly enacted state statute” and
“there was no clear case law in either the federal courts or the
state courts of California establishing that” the statute may not
be applied in the challenged manner); see also Way v. County
of Ventura, 445 F.3d 1157, 1166 (9th Cir. 2006) (Wardlaw,
J., concurring) (defendants entitled to qualified immunity
where they relied on police policy and state statute in con-
ducting unconstitutional strip-search because “the policy and
the state statute had not fallen into desuetude, nor were they
patently violative of fundamental constitutional principles”)
(citation and quotation marks omitted). And, although we
believe that our reading of the statute is one California courts
would adopt, that conclusion is premised in part on the prac-
tice of avoiding unconstitutional interpretations of statutes,
not solely on the language of the statute.
[15] Moreover, as we have noted, there is some question
whether the heckler’s veto consideration applies where the
target audience consists of children. As far as we have been
able to determine, there is no case law holding either that it
does or that it does not. In these circumstances, we cannot
conclude that the law was sufficiently clear that a reasonable
officer would know that it was unlawful to request the Plain-
tiffs to cease driving their truck around the area. See Hope v.
Pelzer, 536 U.S. 730, 741 (2002) (relevant inquiry is whether
8008 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
“the state of the law [at the relevant time] gave [defendants]
fair warning that their [conduct] was unconstitutional”); Por-
ter v. Bowen, 496 F.3d 1009, 1026 (9th Cir. 2007) (qualified
immunity where court itself “had to wrestle with difficult and
unsettled questions about the First Amendment interests
implicated by [plaintiffs’ conduct] and the weight of the coun-
tervailing interests asserted by the State”). We therefore
affirm the district court’s conclusion that the individual defen-
dants are entitled to qualified immunity on the First Amend-
ment claim.
C. Summary of First Amendment Claim
California Penal Code § 626.8, read as we believe a Cali-
fornia court would construe it, does not apply to Plaintiffs’
expressive activities in driving their trucks around Dodson
Middle School. Thus, the officers’ order that Plaintiffs leave
the area around Dodson Middle School violated Plaintiffs’
First Amendment rights. The individual defendants, however,
have qualified immunity from a damages action. As this
immunity does not extend to injunctive relief, see Hydrick v.
Hunter, 500 F.3d 978, 988 (9th Cir. 2007), we remand for the
district court to consider Plaintiffs’ request for injunctive
relief in light of our First Amendment holding.
IV. FOURTH AMENDMENT CLAIMS
We now address Plaintiffs’ Fourth Amendment claims.
Plaintiffs contend that the Deputy Sheriffs violated their
Fourth and Fourteenth Amendment rights by unreasonably
detaining Kulas and Padberg for seventy-five minutes. Plain-
tiffs also claim that the Deputy Sheriffs searched the security
vehicle without securing Kulas’s or Padberg’s consent. We
review de novo the lawfulness of a search or seizure, United
States v. Stafford, 416 F.3d 1068, 1073 (9th Cir. 2005), and
address each claim in turn.
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8009
A. The Seventy-Five Minute Detention
Plaintiffs contend that their seventy-five minute detention
at the scene was unreasonably long and therefore violated
their Fourth Amendment rights. We agree.
[16] A dispatcher’s call to the Deputy Sheriff indicated that
a large white truck was disturbing Dodson Middle School and
that the truck was accompanied by a vehicle similar to a
police cruiser. Based on this information, the Deputy Sheriffs
had reasonable suspicion to believe Kulas and Padberg may
have been violating several California Vehicle Code provi-
sions.13 See Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177,
185 (2004) (requiring that investigative stops be predicated on
reasonable suspicion to believe further investigation may pro-
duce evidence that the person is involved in criminal activity).
Because there was reasonable suspicion, the initial investiga-
tive stop was proper.
[17] Once the sheriffs validly initiated an investigative
stop, no rigid time constraints governed its duration, so long
as the sheriffs acted diligently and pursued a means of investi-
gation likely to confirm or dispel their suspicions quickly.
United States v. Sharpe, 470 U.S. 675, 686 (1985). Here,
although a brief detention to investigate possible Vehicle
Code violations was warranted, that investigation should have
taken no more than a few minutes — enough time to examine
the security vehicle and to determine if there were any out-
standing warrants involving the vehicle or its occupants.14
13
E.g., Cal. Veh. Code § 25268 (prohibiting display of “a flashing
amber warning light on a vehicle”), § 25269 (prohibiting display of “a
flashing or steady burning red warning light on a vehicle”), § 25279(b)
(private security vehicles can use flashing amber lights only if vehicle is
clearly marked as private security), § 27605 (prohibiting ownership and
operation of a vehicle painted to resemble a police car).
14
Defendants suggest that the detention was also reasonable because of
potential violations of two California Education Code provisions: § 32210
8010 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
Defendants argue that the seventy-five minute detention
was justified by their reasonable suspicion that Plaintiffs vio-
lated California Penal Code § 626.8. But a person is only
guilty of a crime pursuant to § 626.8 if they (1) remain at a
school after being asked to leave; (2) reenter within seven
days of being asked to leave; or (3) engage in a “continued
pattern of unauthorized entry.” Plaintiffs did none of these
things. They were not asked to leave until the end of the
seventy-five minute detention, at which point they promptly
left. So, with respect to § 626.8, the officers at no time had
any reason to suspect that the Plaintiffs had committed or
were about to commit this crime.15
There is a second reason why the length of the detention
was not justified by reasonable suspicion. Much of the deten-
tion time was spent waiting for the Deputy Sheriffs’ supervi-
sor to come to the scene to assist with this novel situation. But
once it became clear that no Vehicle Code violations had
taken place, the Deputy Sheriffs were no longer authorized to
detain Plaintiffs based on a reasonable suspicion that any par-
(“Any person who willfully disturbs any public school or any public
school meeting is guilty of a misdemeanor. . . .”) and § 44811 (“[A]ny . . .
person whose conduct in a place where a school employee is required to
be in the course of his or her duties materially disrupts classwork or extra-
curricular activities or involves substantial disorder is guilty of a misde-
meanor.”). These provisions also might justify a brief detention. But, as
with the suspected Vehicle Code violations, there is no explanation of why
it would take seventy five minutes to investigate them. Presumably, just
speaking to Plaintiffs and school officials would be sufficient.
15
That Plaintiffs did not commit a crime under § 626.8 does not impact
the potential application of the statute to their First Amendment rights.
The statute proceeds in two parts: First, faced with conduct that interferes
with or disrupts a school, an officer can order the disrupting person to
leave, on pain of prosecution if he does not. If applicable to protected
speech activity, this order would itself impact First Amendment rights.
Second, only if the person refuses to leave when ordered to do so can he
be charged with a crime. Because Plaintiffs left immediately after being
ordered to do so, they never committed a crime under § 626.8.
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8011
ticular crime had been committed. Instead, the Deputy Sher-
iffs continued to detain plaintiffs because they were waiting
for their supervisors to help them figure out whether any
crime had been committed.
This basis for continued detention does not comport with
Fourth Amendment standards. The investigative purposes per-
mitted by detention are ones of fact, not law. See Michigan v.
Summers, 452 U.S. 692, 700 n.12 (1981) (listing some inves-
tigative techniques that may be used during a Terry stop: “in-
terrogation[;] . . . communicat[ion] with others, either police
or private citizens, in an effort to verify the explanation ten-
dered or to confirm the identification or determine whether a
person of that identity is otherwise wanted[;] . . . [and deter-
mination of whether] in fact an offense has occurred in the
area”). Thus, an officer’s uncertainty about the law cannot
excuse the detention. To permit otherwise “would remove the
incentive for police to make certain that they properly under-
stand the law that they are entrusted to enforce and obey.” See
United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir.
2000); see also United States v. Tibbetts, 396 F.3d 1132, 1138
(10th Cir. 2005) (“[F]ailure to understand the law by the very
person charged with enforcing it is not objectively reason-
able.”) (emphasis in original); cf. United States v. Booker, 496
F.3d 717, 722 (D.C. Cir. 2007) (“Unlike stops premised on
mistakes of fact, ‘[s]tops premised on a mistake of law, even
a reasonable, good-faith mistake, are generally held to be
unconstitutional.’ ”) (alteration in original) (quoting United
States v. Coplin, 463 F.3d 96, 101 (1st Cir. 2006)).
[18] In sum, neither California Penal Code § 626.8 nor the
search for other code provisions that might have been violated
justified the Deputy Sheriffs in detaining the Plaintiffs for
seventy-five minutes while the sheriffs tried to find some
basis for charging them. Consequently, we hold that the depu-
ties’ detention of Kulas and Padberg violated their Fourth and
Fourteenth Amendment rights. Accordingly, we reverse both
the district court’s grant of summary judgment in favor of
8012 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
Defendants and the district court’s denial of summary judg-
ment for Plaintiffs with respect to this issue.
B. Search of Security Vehicle
Plaintiffs also maintain that the Deputy Sheriffs violated
their Fourth Amendment rights by improperly searching
Plaintiffs’ security vehicle. Defendants contend that the depu-
ties had the consent of Kulas and Padberg and, in any event,
the Deputy Sheriffs acted pursuant to California Vehicle Code
§ 2806, which permits inspection of vehicles suspected of vio-
lating the Vehicle Code. We conclude that Plaintiffs have
raised a genuine issue of material fact as to whether the depu-
ties violated their Fourth Amendment rights.
At the outset, we note a significant factual dispute. Padberg
claimed that deputies searched the security vehicle twice, but
only secured consent for the second search. Deputies Repcik
and Darling remember only one search, and claim they had
permission. The recording from the security vehicle’s camera
does not clearly identify how many times the deputies entered
the vehicle, or whether they had consent. This conflicting tes-
timony raises a credibility question that only the factfinder
can resolve. See Freeman v. Arpaio, 125 F.3d 732, 735 (9th
Cir. 1997). For our review of the district court’s grant of sum-
mary judgment for Defendants, we assume that the Plaintiffs’
version of events is true. See Moreno v. Baca, 431 F.3d 633,
638 (9th Cir. 2005).
Thus, for the purposes of this appeal, we accept Plaintiffs’
assertion that two searches took place, and that the first was
not supported by consent. We must therefore evaluate
whether the first search violated Plaintiffs’ Fourth Amend-
ment rights. Defendants cite California Vehicle Code § 2806
as justification for this search. We conclude that, absent con-
sent, the search was improper.
Section 2806 provides as follows:
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8013
Any . . . deputy sheriff . . . having reasonable cause
to believe that any vehicle or combination of vehi-
cles is not equipped as required by this code or is in
any unsafe condition as to endanger any person, may
require the driver to stop and submit the vehicle or
combination of vehicles to an inspection and those
tests as may be appropriate to determine the safety
to persons and compliance with the code.
Cal. Veh. Code § 2806. The deputies entered Plaintiffs’ secur-
ity vehicle to determine whether the flashing lights could be
activated. They now contend that their entry was necessary to
ensure that the vehicle complied with the Vehicle Code.
[19] We addressed the validity of § 2806 searches in United
States v. Portillo, 633 F.2d 1313 (9th Cir. 1980). In Portillo,
a police officer opened a vehicle’s trunk to identify the cause
of a broken rear brake light. Id. at 1315. We upheld the
search, reasoning that § 2806 allowed police to enter a vehicle
to discover the cause of a potentially dangerous condition: in
that case, the possibility that the car’s electrical wiring had
degraded. See id. at 1318-19. We also cautioned, however,
that the defect justified entry because it “was not only a code
violation, but a threat to the safety of persons on the highway”
and that further inspection might either provide an easy rem-
edy or identify more serious safety concerns. Id. at 1319.
[20] Portillo does not legitimize the search of Plaintiffs’
security vehicle. A search’s reasonableness depends on “the
degree to which it intrudes upon an individual’s privacy, and
. . . the degree to which it is needed for the promotion of legit-
imate governmental interests.” United States v. Knights, 534
U.S. 112, 118-19 (2001) (quoting Wyoming v. Houghton, 526
U.S. 295, 300 (1999)). Unlike Portillo, the existence of the
flashing lights here does not suggest any hidden cause that
might be a more serious safety hazard, and further inspection
of the lights would not likely expose more serious code viola-
tions. None of the Vehicle Code sections cited by the Deputy
8014 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
Sheriffs turn on whether the lights are capable of activation.
Thus, entry to activate the lights would not further the govern-
ment’s interests.16 We therefore hold that, absent consent, this
search unreasonably intruded on Plaintiffs’ Fourth Amend-
ment rights.17
C. Qualified Immunity
We now consider whether the Deputy Sheriffs are entitled
to qualified immunity on the Fourth Amendment issues. We
conclude that they are not.
1. Liability for the Unreasonable Detention
[21] The deputies cannot receive qualified immunity for
their unreasonably lengthy detention of Kulas and Padberg.
The deputies’ constitutional duty to act diligently and pursue
a means of investigation likely to confirm or dispel their sus-
picions quickly was clearly established on the date of the
detention in this case. See Sharpe, 470 U.S. at 686. Moreover,
it should have been readily apparent to a reasonable officer
that § 626.8 provided no basis for a detention, as no violation
of the statute occurred unless the Plaintiffs stayed on the
premises after being asked to leave. It was also apparent that
calling school liaison Deputy Sheriff Despot or Assistant
Principal Roberts was not likely to quickly confirm or dispel
16
The Sheriff’s Department also argues that the light switch was in plain
view. That the switch was visible does not justify entry to flip the switch
without some independent justification for entering the vehicle.
17
To the extent consent existed for each search, we reject Plaintiffs’
contention that the consent was not voluntary. “Whether consent to search
was voluntarily given is ‘to be determined from the totality of all the cir-
cumstances.’ ” United States v. Patayan Soriano, 361 F.3d 494, 501 (9th
Cir. 2004) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227
(1973)). We find nothing in the record that suggests coercion. The only
factor militating against voluntariness is the deputies’ failure to advise
Kulas and Padberg of their right to refuse consent. This alone does not
show that their consent was involuntary. See Schneckloth, 412 U.S. at 227.
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8015
any suspicion of wrongdoing. Moreover, neither Despot’s nor
Roberts’s presence was necessary to enforce § 626.8. As the
unlawfulness of their actions was apparent, the deputies are
not entitled to qualified immunity. See Hope, 536 U.S. at 739.
2. Liability for Searches of the Security Vehicle
[22] Assuming Plaintiffs’ allegations to be true, we con-
clude that the deputies do not have qualified immunity for the
first search of the security vehicle. The deputies acted under
authority given by California Vehicle Code § 2806, under
which we have previously upheld warrantless searches of
vehicles. See Portillo, 633 F.2d at 1318-19. Portillo, however,
clearly warned that police may only search a vehicle under
§ 2806 when there is reasonable cause to believe inspection
may uncover evidence of either potentially dangerous condi-
tions or more serious code violations. See id. at 1319. Enter-
ing the vehicle to turn on the lights was not likely to provide
information about either. Thus, the Sheriff’s Deputies are not
entitled to qualified immunity.
D. Summary of Fourth Amendment Claims
[23] Entry of summary judgment for the Sheriff’s Depart-
ment defendants was improper. The deputies violated Plain-
tiffs’ rights by unreasonably detaining them at the scene.
Moreover, Plaintiffs have raised a genuine issue of material
fact with regard to whether the deputies unlawfully entered
their security vehicle. Finally, we conclude that the individual
deputies are not entitled to qualified immunity on summary
judgment. Accordingly, we reverse the district court’s grant of
summary judgment for Defendants on both Fourth Amend-
ment claims. We also reverse the district court’s denial of
summary judgment for Plaintiffs on the unreasonable deten-
tion claim.
8016 CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF
V. DISMISSAL OF SHERIFF BACA
We affirm the district court’s dismissal of Sheriff Baca. An
official capacity suit against a municipal officer is equivalent
to a suit against the entity. Kentucky v. Graham, 473 U.S.
159, 165-66 (1985). When both a municipal officer and a
local government entity are named, and the officer is named
only in an official capacity, the court may dismiss the officer
as a redundant defendant. See Busby v. City of Orlando, 931
F.2d 764, 776 (11th Cir. 1991). Thus, Sheriff Baca is a redun-
dant defendant.18
VI. CONCLUSION
For the foregoing reasons, we hold that Plaintiffs’ First
Amendment rights were violated. The individual defendants,
however, are entitled to qualified immunity from a damages
action on this issue. Accordingly, we reverse the district
court’s grant of summary judgment for defendants and the
denial of summary judgment for Plaintiffs on the First
Amendment issue. We affirm the district court’s dismissal of
the damages action against the individual defendants on quali-
fied immunity grounds on the First Amendment issue but
remand for consideration of injunctive relief. We also affirm
the district court’s dismissal of Sheriff Baca.
We also hold that Plaintiffs have conclusively shown a vio-
lation of their Fourth Amendment rights because of the unrea-
sonable length of Kulas and Padberg’s detention. Moreover,
Plaintiffs have raised a genuine issue of fact as to whether the
Deputy Sheriffs unlawfully entered their security vehicle. We
therefore reverse the district court’s grant of summary judg-
ment for Defendants on both Fourth Amendment claims and
18
Plaintiffs argue that Baca is not a redundant defendant because the
Sheriff’s Department may have sovereign immunity. Plaintiffs, however,
misstate the law: Local government entities do not have sovereign immu-
nity. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.54 (1978).
CENTER FOR BIO-ETHICAL v. L.A. COUNTY SHERIFF 8017
reverse the district court’s denial of summary judgment for
Plaintiffs on the unreasonable detention issue.
We remand for further proceedings consistent with this
opinion. In particular, we leave it to the district court to
address, in light of this opinion, Plaintiffs’ conspiracy claim
and Plaintiffs’ request for injunctive relief.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED. EACH SIDE TO BEAR ITS OWN COSTS.