Villegas v. City of Gilroy

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE VILLEGAS; BOB POELKER; 
MARCELO ORTA; DON DEROSIERS,
Plaintiffs-Appellants, No. 05-15725
v.
 D.C. No.
CV-01-20720-JW
GILROY GARLIC FESTIVAL
ASSOCIATION; D. BERGMAN, Officer; OPINION
CITY OF GILROY,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
December 11, 2007—Pasadena, California
Filed September 3, 2008
Before: Alex Kozinski, Chief Judge,
Diarmuid F. O’Scannlain, Pamela Ann Rymer,
Sidney R. Thomas, M. Margaret McKeown,
Kim McLane Wardlaw, Raymond C. Fisher,
Ronald M. Gould, Richard A. Paez, Consuelo M. Callahan,
and N. Randy Smith, Circuit Judges.
Opinion by Judge O’Scannlain;
Dissent by Judge Thomas;
Dissent by Judge Gould
12057
VILLEGAS v. GILROY GARLIC FESTIVAL 12061
COUNSEL
Randolph M. Hammock, Law Offices of Richard M. Lester,
Canoga Park, California, argued the cause for the plaintiffs-
appellants; Allen Lichtenstein, General Counsel and Lee
Rowland, Staff Attorney, ACLU, Las Vegas, Nevada, were
on the briefs.
Bronwen Lacy, Strombotne Law Firm, San Jose, California,
and Gregory C. Simonian, Clapp Moroney Bellagamba and
Vucinich, Daly City, California, argued the cause for the
defendants-appellees; Mark Strombotne, Strombotne Law
Firm, San Jose, California, G. Martin Velez, Clapp Moroney
Bellagamba and Vucinich, Daly City, California, and Valerie
S. Higgins, Clapp Moroney Bellagamba and Vucinich, San
Bruno, California, were on the briefs.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether guests at the Gilroy Garlic Festi-
val can hold the City of Gilroy in California and the Gilroy
Garlic Festival Association liable in a civil rights action when
they are escorted from the event by a City police officer for
violating the Festival’s dress code.
I
George Villegas and remaining plaintiffs (hereinafter “Top
12062 VILLEGAS v. GILROY GARLIC FESTIVAL
Hatters”), all of whom are members of the Top Hatters
Motorcycle Club, brought suit against the City of Gilroy and
the Gilroy Garlic Festival Association (“GGFA”) under 42
U.S.C. § 1983 for alleged violations of their civil rights aris-
ing out of events occurring at the Gilroy Garlic Festival on
July 30, 2000. On that occasion they were wearing vests that
included an image of a skull with wings and a top hat with the
words “Top Hatters” above the top hat and the word “Hol-
lister” written below.1 Pursuant to an unwritten policy of the
GGFA that prohibited guests from wearing “gang colors or
other demonstrative insignia, including motorcycle club insig-
nia,” the Festival’s chair of security, an off-duty police offi-
cer, requested an on-duty police officer to remove the Top
Hatters and this litigation ensued.
The district court granted summary judgment in favor of
both the City of Gilroy and the GGFA, ruling that wearing
such vests was neither expressive conduct nor expressive
association within the protection of the First Amendment and
that in any event the GGFA was not a state actor within the
meaning of section 1983. Villegas v. City of Gilroy, 363 F.
Supp. 2d 1207, 1208-09, 1211, 1217-19 (N.D. Cal. 2005).
On the Top Hatters’ appeal, a three-judge panel affirmed,
holding that the motorcycle club insignia was subject to
expressive conduct analysis but that there was no First
Amendment violation; it failed to reach the state action issue.
See Villegas v. City of Gilroy, 484 F.3d 1136, 1140 (9th Cir.),
withdrawn, 503 F.3d 974 (9th Cir. 2007).
Thereafter, a majority of the circuit judges in active service
ordered that this case be heard en banc pursuant to Rule 35(a)
1
The Top Hatters attended the Gilroy Garlic Festival to celebrate mem-
ber Bob Poelker’s birthday sporting their Top Hatters Motorcycle Club
vests. These vests are made of either blue denim or black leather, and are
adorned with various patches and pins that indicate membership in the
Top Hatters.
VILLEGAS v. GILROY GARLIC FESTIVAL 12063
of the Federal Rules of Appellate Procedure. Villegas, 503
F.3d at 974.
II
Before dealing with the Top Hatters’ contentions, a more
detailed recital of the uncontroverted facts offered in support
of summary judgment is appropriate.
Once a year, for a few days in the summer, GGFA, a pri-
vate non-profit corporation, sponsors and runs the Gilroy Gar-
lic Festival. The Festival offers food, contests, music, and
family recreation activities—with an emphasis on garlic—in
a family-friendly environment. Such attractions include the
Great Garlic Cook-Off cooking contest and Gourmet Alley,
where garlic-laced calarmari and scampi, garlic chicken stir
fry, garlic sausage sandwiches, and garlic bread are served.
Magicians, dance troupes, puppets and jugglers offer enter-
tainment geared toward children in a special area.
The Festival at issue was held in Christmas Hill Park, a
public park in the City of Gilroy, from July 28 to July 30,
2000. In order to secure this venue, GGFA entered into a
facility reservation contract with the City. Under the terms of
this agreement, GGFA was required to “understand and agree
that security and traffic control may be required by the Gilroy
Police Department.”
GGFA itself has a chair of security and an assistant chair
of security, who are unpaid volunteers, one of whom is usu-
ally a law enforcement officer with the City of Gilroy Police
Department or another local law enforcement agency. At the
conclusion of the Festival, the City of Gilroy Police Depart-
ment typically submits a bill to GGFA for expenses incurred
in providing its law enforcement officers to staff the Festival.
GGFA had an informal dress code in place; however, as the
Top Hatters point out, at the time of the incident, there was
12064 VILLEGAS v. GILROY GARLIC FESTIVAL
no written policy in existence, nor was there one posted.
According to the alleged dress code, persons wearing clothing
with gang colors or insignia were allowed to remain at the
Festival only if they removed such clothing. Individuals refus-
ing to remove clothing with gang colors or insignia were not
permitted to remain at the Festival. Such policy was adopted
as a response to an increase in gang-related violence at the
Festival in prior years which had negatively impacted atten-
dance. The dress code was not applied to the area outside the
Festival.
As the Top Hatters entered the Festival sporting their vests,
off-duty Gilroy Police Sergeant Donald Kludt, GGFA’s chair
of security, dressed in plain clothes, spotted them, contacted
Gilroy Police Officer Brenda Bergman, and requested that she
escort the Top Hatters back to the gate. Officer Bergman was
armed and uniformed and assigned to Festival security. In his
deposition, Sergeant Kludt explained why he contacted Offi-
cer Bergman for assistance:
Q: Was it the fact that she [Officer Bergman] was an
armed uniformed officer, was that part of your
thought process in wanting her to be with you?
A: Yeah.
Q: Because you were not armed; correct?
A: Correct.
Q: And you were not uniformed; correct?
A: Correct.
Q: And you wanted Officer Bergman to assist you
because she would give some air of authority as a
police officer; correct?
VILLEGAS v. GILROY GARLIC FESTIVAL 12065
[Objection]
Q: Would that be a fair statement?
A: Yes.
Officer Bergman duly approached the Top Hatters and
requested that they follow her to the gate and they complied.
Once they arrived there, Sergeant Kludt explained GGFA’s
dress code policy to them: “I told them that if they refused to
remove their [gang] colors and enjoy the festival that we will
ask them to leave and then we will refund their money, their
entry fee into the festival.” The Top Hatters, however,
felt that this was not right, that they had their rights
to wear their vests where they wanted to and this was
not right. And I [Sergeant Kludt] told them: Well, I
have a policy and I’m enforcing this policy and I’m
asking you to leave if you’re choosing not to, you
know, come into the festival without your colors.
So they left. And then I walked around with them,
went to the ticket booth and ordered those people to
refund these people their money.
Q: Where was Officer Bergman at the time?
A: Standing next to me.
The Top Hatters challenge on appeal the district court’s
grant of summary judgment, asserting that there were genuine
issues of material fact as to whether GGFA was a state actor
and whether the Top Hatters were engaged in protected
expressive conduct or expressive association. The Top Hatters
also assert that the City was liable for enforcing an unconsti-
tutional dress code which it had impliedly adopted.
12066 VILLEGAS v. GILROY GARLIC FESTIVAL
III
[1] Under familiar principles, even a private entity can, in
certain circumstances, be subject to liability under section
1983. See Sutton v. Providence St. Joseph Medical Ctr., 192
F.3d 826, 835-36 (9th Cir. 1999). In Lugar v. Edmondson Oil
Co., 457 U.S. 922 (1982), the Supreme Court created a two
step analysis for determining whether or not there was state
action by a private actor sufficient to establish liability for a
constitutional tort. The first inquiry was “whether the claimed
deprivation has resulted from the exercise of a right or privi-
lege having its source in state authority.” Id. at 939. The sec-
ond was “whether, under the facts of this case, . . . [the]
private parties, may be appropriately characterized as ‘state
actors.’ ” Id. In Brentwood Academy v. Tennessee Secondary
School Athletic Association, 531 U.S. 288 (2001), the Court
introduced a multi-factored test. Id. at 295-300. The inquiry
is a general one: “[S]tate action may be found if, though only
if, there is such a ‘close nexus between the State and the chal-
lenged action’ that seemingly private behavior ‘may be fairly
treated as that of the State itself.’ ” Id. at 295 (quoting Jack-
son v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).
Some of the factors to consider in determining whether there
is a “close nexus” are: (1) the organization is mostly com-
prised of state institutions; (2) state officials dominate deci-
sion making of the organization; (3) the organization’s funds
are largely generated by the state institutions; and (4) the
organization is acting in lieu of a traditional state actor. See
id. at 295-99.
The Top Hatters argue that there is a sufficiently “close
nexus” between the GGFA and the City of Gilroy and point
to the following facts in support of its contention:
1. The festival is held in a public park, owned by
the City of Gilroy;
2. The City of Gilroy issued a written permit to the
GGFA which is signed by all of the city council
VILLEGAS v. GILROY GARLIC FESTIVAL 12067
members, and which requires, in part, that the City
of Gilroy provide some of its police officers as
security for the festival;
3. The City of Gilroy submits a bill to the GGFA
for the use of its police officers;
4. The “chair of security” for the GGFA is typi-
cally a police officer with the City of Gilroy Police
Department;
5. At the time of the incident, this “chair of securi-
ty” for the GGFA was Sergeant Kludt, an active
member of the City of Gilroy Police Department;
and
6. Sergeant Kludt utilized the command post of the
Gilroy Police Department at the festival grounds.
We are not persuaded. The Fourth Circuit’s opinion in
United Auto Workers v. Gaston Festivals, Inc., 43 F.3d 902(4th Cir. 1995), is instructive. In Gaston, the UAW was
denied a booth at a festival run by Gaston Festivals, Inc., “a
private, non-profit corporation that organizes and promotes
the Fish Camp Jam, an annual festival held in downtown Gas-
tonia, North Carolina.” Id. at 904. The festival was “held on
public streets and sidewalks and on private property in Gasto-
nia’s downtown area.” Id. Just like GGFA, Gaston had to “ob-
tain a permit in order to use the public property during the
festival . . . . In addition to approving the permit, the City pro-
vide[d] police protection, traffic department assistance, and
sanitation services during the . . . event.” Id. In addition, the
City actually donated $10,000 to the Fish Camp Jam. Id. at
904-05.
The court in Gaston determined that “[t]he organization,
management, and promotion of events such as the [festival]
do not fall within the domain of functions exercised tradition-
12068 VILLEGAS v. GILROY GARLIC FESTIVAL
ally and exclusively by the government.” Id. at 907-08. Addi-
tionally, the court noted that “[t]he Supreme Court has
expressed doubts that, as a general matter, ‘the operation of
a park for recreational purposes is an exclusively public func-
tion,’ particularly in light of ‘the experience of several Ameri-
can entrepreneurs who amassed great fortunes by operating
parks for recreational purposes.’ ”2 Id. at 908 (quoting Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 159 n.8 (1978) and citing
NCAA v. Tarkanian, 488 U.S. 179, 197-98 n.18 (1988) (hold-
ing that the coordination of amateur sports is “by no means
. . . a traditional, let alone an exclusive, state function”)).
The UAW also made the argument that Gaston Festivals
was a state actor because the City had given control of its
town center to the festival, which the court rejected because
it determined that to find state action, “[a] private actor must
assume plenary control and complete governmental power
over the property in question.” Id. at 909 (citing Marsh v. Ala-
bama, 326 U.S. 501, 506 (1946); Hudgens v. NLRB, 424 U.S.
507, 519 (1976)). The court noted that while the City required
a permit and provided essential services such as security to
support the festival, the City did not thereby relinquish control
of the public areas. Id.[2] Applying similar principles here, we conclude that
GGFA is not a state actor. First, running festivals is not a tra-
ditional municipal function. Second, just as in Gaston, the
City of Gilroy required a permit, showing that the City
retained control of the park and provided security services.
Unlike in Gaston, where the City actually contributed money
to the festival, the City of Gilroy billed the GGFA for its
security services. There is even less connection between Gil-
roy and GGFA than between the city and the festival in Gas-
ton.
2
Additionally, we have required that for a private actor to be considered
a state actor under a “public function test, the function at issue must be
both traditionally and exclusively governmental.” Lee v. Katz, 276 F.3d
550 (9th Cir. 2002) (emphasis added).
VILLEGAS v. GILROY GARLIC FESTIVAL 12069
[3] Nevertheless, the Top Hatters rely upon United States
v. Davis, 482 F.2d 893, 901-04 (9th Cir. 1973), overruled on
other grounds by United States v. Aukai, 497 F.3d 955, 960-
61 (9th Cir. 2007) (en banc). There, we held that when private
security guards implemented an airport security program
ordered by the President of the United States, they were
engaging in a predominately government function and that the
federal government was the dominant actor. Davis, 482 F.2d
at 901-04. Unlike Davis, there is no showing here that secur-
ity activity is a dominant or even a major purpose of the
GGFA. Furthermore, there is no indication in the record that
the City of Gilroy plays a dominant role in controlling the
actions of the organization or the content of the festival.3
3
Collins v. Womancare, 878 F.2d 1145 (9th Cir. 1989), on which the
dissent relies, does not counsel otherwise. Dissent at 12075-76, 12080-81.
First, there is no evidence that the City or the police department played
any part in drafting the dress code or any other aspect of the Festival.
Police were required to be present to provide security, a legitimate state
interest when such a large crowd is gathered. See Berger v. Hanlon, 129
F.3d 505, 514 (9th Cir. 1997), rev’d on other grounds, 526 U.S. 808(1999) (per curiam), opinion reinstated, 188 F.3d 1155 (9th Cir. 1999).
Here, unlike in Berger where there was “a written contractual commitment
between the government and the media to engage jointly in an enterprise
that only the government could lawfully institute—the execution of a
search warrant,” maintaining security is not something only the govern-
ment could lawfully institute. Id.Second, although the dissent focuses on the “neutrality” of the officers
in Womancare, here, unlike in Womancare where police “neutrality” was
of greater importance due to the general right of anyone to protest on a
sidewalk, a person does not have a general right to wear attire of their
choosing to a privately run festival. See Hurley v. Irish-Am. Gay, Lesbian
& Bisexual Group of Boston, 515 U.S. 557, 579 (1995) (recognizing right
of parade organizers to exclude unwanted participants despite its “use of
the streets”).
Third, the additional factors that the dissent lists to suggest “joint
action,” including the percentage of the citizens of Gilroy working at the
festival, the increased income generated, and “the assistance and involve-
ment of the City’s Engineering Division, Building & Safety Division, Fire
Department, Chemical Control Division, and Police Department,” could
12070 VILLEGAS v. GILROY GARLIC FESTIVAL
Following the reasoning of Gaston, we are satisfied that
GGFA was not a state actor for purposes of section 1983 liabil-
ity.4
IV
[4] The Top Hatters also contend that the City of Gilroy is
liable under Monell v. Department of Social Services, 436
U.S. 658, 691 (1978), for violating their First Amendment
rights by enforcing the GGFA dress code. But it is generally
not a constitutional violation for a police officer to enforce a
private entity’s rights. As the district judge noted in this case,
and we agree, if the ability “to exclude others from public
property during the course of a limited, permitted use” were
found to be a constitutional violation, “[e]very picnic, wed-
ding, company outing, meeting, rally, and fair held on public
grounds would be subject to constitutional scrutiny.” Villegas,
363 F. Supp. 2d at 1216. Because there is no constitutional
violation, there can be no municipal liability.
apply equally to the building of a new fertilizer plant, but that would not
make the construction of such plant state action. Dissent at 12076. More-
over, the large increase in visitors from afar highlights that the main con-
cern of the City in maintaining a police presence was public safety, not a
share in the financial success of the Festival.
4
The dissent finds fault with our conclusion of state action, stating that
we “consider[ ] only the ‘governmental function’ test.” Dissent at 12074.
But, it is clear from our analysis that we consider not only whether a festi-
val is a traditional state function but also factors such as the level of con-
trol the City has over the festival, the level of financial contribution of the
City to the festival, etc. See Brentwood Academy, 531 U.S. at 295-99(emphasizing that federal courts should apply a flexible multi-factor anal-
ysis when determining whether the action of a private actor is really state
action for purposes of the Fourteenth Amendment). Moreover, the dis-
sent’s approach seems to be internally inconsistent, noting that there is “no
specific formula for defining state action” but then stating that we must
apply “four distinct—but not mutually exclusive—tests.” Dissent at
12074; see also Brentwood Academy, 531 U.S. at 295-99 (describing the
“four distinct . . . tests” referred to by the dissent in this case as simply
factors that may be considered in a flexible approach to state action).
VILLEGAS v. GILROY GARLIC FESTIVAL 12071
[5] But even if there were a constitutional violation, the
Top Hatters cannot establish municipal liability under the
Monell standard. In Monell, the Supreme Court held that a
local government may indeed be liable for violation of consti-
tutional rights resulting from “a policy statement, ordinance,
regulation or decision officially adopted and promulgated by
that body’s officers” or “pursuant to governmental ‘custom’
even though such a custom has not received formal approval
through the body’s official decisionmaking channels.” 436
U.S. at 690-91.
[6] Generally, a municipality is liable under Monell only if
a municipal policy or custom was the “moving force” behind
the constitutional violation. See Galen v. County of Los Ange-
les, 477 F.3d 652, 667 (9th Cir. 2007). In other words, there
must be “a direct causal link between a municipal policy or
custom and the alleged constitutional deprivation.” City of
Canton v. Harris, 489 U.S. 378, 385 (1989). Furthermore, it
is not enough to “merely [to] alleg[e] that the existing . . . pro-
gram . . . represents a policy for which the city is responsi-
ble.” Id. at 389.
[7] Here, the Top Hatters point to the fact that the permit
requires that the City’s police provide a portion of the Festi-
val’s security, that the City is reimbursed for providing such
security, and that Officer Bergman complied with the request
of the GGFA’s chair of security to remove individuals who
did not comply with GGFA’s dress code.5 None of these facts
gives rise to the conclusion that the City had a policy or cus-
tom of enforcing GGFA’s dress code. Furthermore, there is
no evidence in the record of a custom or official policy of the
5
Although the GGFA chair of security was a police officer, there is no
showing that he was acting other than in his private capacity as the GGFA
chair of security. Furthermore, there is no evidence presented by the Top
Hatters that Officer Kludt was required to be the chair of security by City
policy or custom, or that the GGFA was required by the City to name a
police officer as its chair of security.
12072 VILLEGAS v. GILROY GARLIC FESTIVAL
City to enforce the GGFA’s dress code, nor is there evidence
that Gilroy officials participated in forming the dress code.
V
In light of the foregoing we do not reach the question of
whether wearing the Top Hatters clothing and insignia consti-
tuted expressive conduct.
AFFIRMED.
THOMAS, Circuit Judge, with whom Circuit Judges
WARDLAW, FISHER, and PAEZ join, dissenting, and with
whom Circuit Judge GOULD joins in part:
Gilroy holds itself out as the “Garlic Capital of the World,”
and no one seriously disputes the claim. In celebration of its
status, and recognizing that eating garlic is inevitably a shared
experience, Gilroy hosts an annual Garlic Festival in late July.
It is not a small affair. Approximately 120,000 visitors partici-
pate annually, and more than three million revelers have
attended the festival since its inception. Disregarding the
Bard’s admonition,1 the festival features “food laced with
over two tons of garlic.” It is, according to the promotional
materials, a “fun and fragrant” experience, with participants
“going bananas over garlic.” The festival is sponsored and
managed by the non-profit Gilroy Garlic Festival Association
(“Festival Association”).
Members of the Top Hatters Motorcycle Club, Inc., a non-
profit charitable corporation, were expelled from the 2000
Festival for wearing vests bearing their corporate insignia—
1
“And, most dear actors, eat no onions nor garlic, for we are to utter
sweet breath.” William Shakespeare, A Midsummer Night’s Dream, act 4,
sc. 2.
VILLEGAS v. GILROY GARLIC FESTIVAL 12073
thereby violating the Festival Association’s unwritten dress
code. The Top Hatters filed suit against the City of Gilroy
(“City”), the officer enforcing the dress code, and the Festival
Association. The district court concluded that genuine issues
of material fact existed as to whether the City’s involvement
constituted state action, but held that the wearing of the vests
did not constitute expressive conduct violative of the First
Amendment. The district court granted summary judgment as
to the Festival Association on the basis that it was not a state
actor. A three-judge panel of this court affirmed the grant of
summary judgment on the ground that the Top Hatters had not
engaged in protectable expressive conduct. We granted
rehearing en banc to reconsider the panel’s decision and
ordered that the panel opinion be designated as non-
precedential and non-citable. The majority has declined to
reach the First Amendment question, but has elected to hold
that neither the Festival Association nor the City was engaged
in state action. The evidence, viewed in the light most favor-
able to the Top Hatters, demonstrates that there are genuine
issues of fact precluding summary judgment. Therefore, I
respectfully dissent.
I
Genuine issues of material fact preclude summary judg-
ment as to the Festival Association. As the majority notes, it
is a well-established principle that a private entity can be sub-
ject to liability as a state actor under certain circumstances.
See, e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715,
724-25 (1961) (holding that a privately owned restaurant that
leased property from a state-owned parking facility was a
state actor). The ultimate question is whether “the conduct
allegedly causing the deprivation of a federal right” is “fairly
attributable to the [s]tate.” Lugar v. Edmondson Oil Co. Inc.,
457 U.S. 922, 937 (1982).
In deciding whether conduct of private parties amounts to
government action, we engage in a highly factual inquiry.
12074 VILLEGAS v. GILROY GARLIC FESTIVAL
Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983).
While “ ‘there is no specific formula for defining state
action,’ ” id. (quoting Melara v. Kennedy, 541 F.2d 802, 805
(9th Cir. 1976)), we have traditionally evaluated whether a
private actor has engaged in state action by relying on four
distinct—but not mutually exclusive—tests: (1) the govern-
mental nexus test, see Jackson v. Metro. Edison Co., 419 U.S.
345, 351 (1974) (courts must consider whether there is a “suf-
ficiently close nexus between the [s]tate and the challenged
action of the regulated entity so that the action of the latter
may be fairly treated as that of the [s]tate itself”); (2) the pub-
lic or governmental function test, see id. at 352 (state action
is present when a private entity exercises functions tradition-
ally and exclusively reserved to the state); (3) the state com-
pulsion test, see Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)
(“a [s]tate normally can be held responsible for a private deci-
sion only when it has exercised coercive power or has pro-
vided such significant encouragement, either overt or covert,
that the choice must in law be deemed to be that of the
[s]tate”); and finally, (4) the joint action test, see Dennis v.
Sparks, 449 U.S. 24, 27 (1980) (private actors can be consid-
ered state actors if they are “willful participant[s] in joint
action with the [government] or its agents”). Satisfaction of
any one of these tests can be sufficient to find state action. See
Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n,
531 U.S. 288, 303 (2001); Lee v. Katz, 276 F.3d 550, 554 (9th
Cir. 2002).
Rather than applying the established four test analysis, the
majority, relying on a single case from the Fourth Circuit,
considers only the “governmental function” test, and ends its
inquiry there. However, unlike the plaintiffs in United Auto
Workers v. Gaston Festivals, Inc., 43 F.3d 902 (4th Cir.
1995), the Top Hatters do not rest their argument on the gov-
ernmental function test. Thus, by relying solely on United
Auto Workers and narrowing its focus to just the single test
considered therein, the majority has set up a straw man to
prove what we already know: the Festival Association, in
VILLEGAS v. GILROY GARLIC FESTIVAL 12075
organizing a festival to promote and celebrate garlic, was not
likely performing a function that is “traditionally the exclusive
prerogative of the [s]tate.” Rendell-Baker v. Kohn, 457 U.S.
830, 842 (1982) (internal quotation marks omitted). The Top
Hatters do not argue that it was, and the Festival Association
allots only three sentences of its brief to affirm this common
sense point. Unfortunately, in limiting its analysis to whether
organizing a garlic festival is an exclusive governmental func-
tion, the majority ignores both the ultimate state action
inquiry and the Supreme Court’s traditional means of answer-
ing that question: “tak[ing] a flexible approach . . . [and]
applying a variety of tests to the facts of each case.” Gal-
lagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447
(10th Cir. 1995); see also Brentwood Acad., 531 U.S. at 296(noting that a “host of facts” can bear on whether action is
fairly attributable to the state and describing numerous tests
used by the Supreme Court).
In this case, the test that most reasonably applies to the Fes-
tival Association’s relationship with the City is the “joint
action” test. Under this test, the Top Hatters have demon-
strated that a triable issue of material fact exists as to whether
the Festival Association’s actions are “fairly attributable to
the [s]tate.” Lugar, 457 U.S. at 937.
Joint action “exists where a private party is ‘a willful par-
ticipant in joint action with the [s]tate or its agents.’ ” Collins
v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989). The
lynchpin of a finding of “joint action” is the existence of “a
substantial degree of cooperative action.” Id. Joint action
exists when the government “has ‘so far insinuated itself into
a position of interdependence with [the private entity] that it
must be recognized as a joint participant in the challenged
activity.’ ” Id. (alteration in original). Thus, the joint action
test will be satisfied when the actions of the state and the pri-
vate party are intertwined or when the parties have a symbi-
otic relationship. See Brentwood Acad., 531 U.S. at 298-99.
12076 VILLEGAS v. GILROY GARLIC FESTIVAL
Viewing the evidence in the light most favorable to the Top
Hatters, as we are required to do here—a standard the major-
ity fails to mention, let alone apply—demonstrates that the
relationship between the City and the Festival Association is
sufficiently intertwined to create a triable issue of fact as to
whether the joint action test has been satisfied.
First, the festival is not an intimate, private gathering. It is
the largest event of the year in Gilroy. As the district court
noted, the population of Gilroy expands five-fold during the
festival, with the concomitant significant impact on the local
economy. Over 4,000 community volunteers—over ten per-
cent of the citizens of Gilroy—work in some capacity at the
festival. For the duration of the festival, it engulfs the City. In
order to administer this mammoth event safely, the festival
required the assistance and involvement of the City’s Engi-
neering Division, Building & Safety Division, Fire Depart-
ment, Chemical Control Division, and Police Department. In
other words, the very nature of the festival requires significant
intertwining of resources between the City and the Festival
Association.
Second, the presence of an agreement between the govern-
ment and the private party is also a significant factor in apply-
ing the joint action test. “The Supreme Court has said [the
joint action test] is satisfied when the plaintiff is able to estab-
lish an agreement, or conspiracy between a government actor
and a private party.” Berger v. Hanlon, 129 F.3d 505, 514
(9th Cir. 1997) (citing Dennis, 449 U.S. at 27-28), rev’d on
other grounds, 526 U.S. 808 (per curiam), opinion reinstated,
188 F.3d 1155 (9th Cir. 1999).
In this case, as a condition of the use of the property, the
City required the Festival Association to apply for and receive
a special event permit. As one of the conditions for receiving
the permit, the City required the Festival Association to staff
the festival with City police officers and to reimburse the City
for the expense. The number of personnel deployed was to be
VILLEGAS v. GILROY GARLIC FESTIVAL 12077
negotiated between the Festival Association and the City,
although the City generally provided twenty-five percent of
the festival’s security force. These police officers were con-
sidered to be on duty and working within the course and
scope of their employment with the City while stationed at the
festival.
Third, participation of state actors in the private association
is an indicia of joint action. See Brentwood Acad., 531 U.S.
at 298 (examining composition of the membership of a pri-
vate athletic association in holding it was a state actor). By
tradition, the head of security for the Festival Association was
a member of the City police force. The 2000 festival was no
exception. In the year in question, the head of security for the
Festival Association was City Police Sergeant Donald Kludt.
Fourth, although the City’s police officers acted within the
course and scope of their employment with the City when
deployed at the festival, the officers took orders from the Fes-
tival Association with respect to enforcing the Festival Asso-
ciation’s dress code. Before the 2000 festival, City police
officers attended briefings as to the parameters of the dress
code and were instructed to exclude persons wearing “group
clothing that could inspire conflict,” as Gilroy City police
officer Brenda Bergman testified.
Officer Bergman, the City police officer who participated
in removing the Top Hatters from the festival, testified that
Sergeant Kludt was her direct supervisor during the course of
her regular employment with the City. Bergman also testified
that during the festival, when Sergeant Kludt was serving as
head of security, she would take directions from him either in
his capacity as her direct supervisor or in his capacity as
security chief for the Festival Association.
These facts alone create a triable issue of fact as to whether
the substantial cooperation that existed between the City and
the Festival Association with respect to the dress code consti-
12078 VILLEGAS v. GILROY GARLIC FESTIVAL
tuted joint action. However, the specifics of the encounter at
issue also provide evidence of substantial cooperation and the
intertwining of the City and the Festival Association.
We have previously considered the circumstances in which
a police officer’s involvement in a private enforcement action
constitutes state action such that the private entity is liable in
a line of cases involving police presence at private vehicle
repossessions and evictions. See, e.g., Meyers v. Redwood
City, 400 F.3d 765 (9th Cir. 2005); Howerton, 708 F.2d 380;
Harris v. City of Roseburg, 664 F.2d 1121 (9th Cir. 1981).
These cases teach us that “[w]hile mere acquiescence by the
police to ‘stand by in case of trouble’ is insufficient to con-
vert” a private enforcement action into one attributable to the
state, “police intervention and aid . . . does constitute state
action.” Harris, 664 F.2d at 1127. Even mere assistance in
effectuating an enforcement action or the intimidation of a
person so “as to cause him to refrain from exercising his legal
right to resist” will support a finding of state action. Id.In Harris, we found state action where a man holding a
security interest in a semi-tractor requested two officers to
accompany him while he attempted to repossess the semi-
tractor. Id. at 1124. When Harris, the owner of the truck, con-
fronted his creditor, one of the officers “stepped in and told
Harris to ‘stand back or get away.’ ” Id. In response to Har-
ris’s question about what was happening, the officer
explained that the creditor had come to repossess the truck,
and that he, the officer, “ ‘came out to stand by.’ ” Id. Harris
testified that the officer told him that if he interfered in any
way, he would be taken to jail, and that if the officers had not
been present, he would have physically resisted the reposses-
sion. Id. at 1127. Concluding that an officer’s assistance or
intimidation is sufficient to constitute state action, we held
that the officer’s conduct had converted the repossession in
Harris into state action. Id.As in Harris, here Officer Bergman did more than merely
“stand by in case of trouble”: she actively assisted Kludt in
VILLEGAS v. GILROY GARLIC FESTIVAL 12079
enforcing the Festival Association’s unwritten dress code pol-
icy. First, Bergman, at Kludt’s direction, approached the Top
Hatters and ordered them to follow her to the festival’s
entrance gate. According to plaintiff Donald Desrosiers, he
obeyed Bergman precisely because she was clearly an officer:
“when a police officer comes up and says follow you, you fol-
low them. That’s the nature of the law. . . . It felt threatening.”
Kludt asked Bergman to approach the Top Hatters precisely
because he was hoping for that effect—as an armed, uni-
formed officer, Kludt believed Bergman “would give some air
of authority” to his request that the Top Hatters remove their
vests or leave the festival.
Moreover, at least one of the Top Hatters testified that it
was Officer Bergman who first informed the Top Hatters of
the festival’s dress code policy, and indicated that if they
refused to remove their “colors,” they would have to leave the
festival. Sergeant Kludt then joined Bergman and the Top
Hatters at the festival’s gate, where he repeated Bergman’s
ultimatum. Plaintiff Marcelo Orta, Jr. recalled that Officer
Bergman supported Kludt by telling the Top Hatters they
were a gang and that they “just needed to leave, that they
didn’t want our kind there.” Finally, once the Top Hatters had
received their refunds, other uniformed Gilroy police officers
escorted the plaintiffs to their bikes. Those officers also ech-
oed Kludt and Bergman, saying, “All you have to do is take
your patch off, you can go back in.”
Officer Bergman and other uniformed Gilroy police offi-
cers actively assisted Sergeant Kludt in enforcing the Festival
Association’s dress code by requesting that the plaintiffs fol-
low Bergman, demanding that they remove their vests, and
lending Kludt’s own statements “an air of authority.” More-
over, at least two of the Top Hatters testified that they knew
Kludt himself to be a Gilroy police officer, as he identified
himself to them as such and wore a badge. These actions meet
Harris’s standard for state action—Officer Bergman and the
other Gilroy officers did more than merely stand by in case
12080 VILLEGAS v. GILROY GARLIC FESTIVAL
of trouble—they actively aided Kludt in enforcing the Festival
Association’s dress code.
Our decision in Womancare also supports the conclusion
that the Festival Association’s actions are fairly attributable to
the state. See 878 F.2d 1145. In Womancare, we held that a
group of anti-abortion protestors had failed to satisfy the joint
activity test for state action when employees of a woman’s
health center performed citizens’ arrests on protestors whom
they believed were violating an injunction. Id. at 1155. While
we noted that there “the impetus for the arrests” came from
the health center’s employees, not from the police, we empha-
sized the independence of the police officers. Id. at 1155-56(“In short, there is no indication in the record that state agents
failed to use independent judgment . . . .”).
In Womancare, the employees first attempted to serve the
protestors with the injunction, and when that effort failed,
they called the police. Id. at 1146. Once a police officer had
arrived on the scene, the officer conducted “an independent
investigation” and then “refused . . . to arrest the protestors on
his own authority.” Id. at 1155. Additionally, we noted that
the protestors had not alleged any facts to contradict the
employees’ contention that the “police maintained a policy of
neutrality in the dispute.” Id. The plaintiffs had “presented no
evidence from which [the] court could infer ‘a prearranged
plan, customary procedure, or policy that substituted the judg-
ment of a private party for that of the police.’ ” Id. (quoting
Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th
Cir. 1987)).
Here, while the impetus for removing the Top Hatters from
the festival also came from the private party and not the state,
Sergeant Kludt enlisted Officer Bergman’s aid from the
beginning. Rather than calling for police assistance after
approaching the plaintiffs as the employees in Womancare
did, here Kludt asked Bergman to make the initial contact
with the Top Hatters. He relied on her “air of authority” to
VILLEGAS v. GILROY GARLIC FESTIVAL 12081
escort them out of the festival without a confrontation. More-
over, Bergman did not participate as an independent and neu-
tral official, but rather acted at Kludt’s direction to enforce the
Festival Association’s policies. Bergman also provided testi-
mony that indicated that Gilroy police officers working at the
festival were customarily trained as to the festival’s dress
code policy and had the authority to enforce it. Unlike in
Womancare, then, Bergman was not summoned to the scene
to exercise her neutral, independent judgment about the situa-
tion, but was called in by the Festival Association’s security
chair in order to effectuate the plaintiffs’ removal based on
the Festival Association’s own policies. There is thus a genu-
ine issue of material fact as to whether Bergman’s participa-
tion rose to the level of “substantial cooperation” sufficient to
establish state action under the joint activity test.
II
The district court properly concluded that triable issues of
fact precluded summary judgment as to the City and Officer
Bergman on the question of state action.
A
There is really no doubt that Officer Bergman was acting
under color of law when she removed the Top Hatters from
the festival. She was on duty with the City at the time of the
incident. She was acting within the course and scope of her
City employment. She was uniformed, visibly armed, and
wearing a badge. She was summoned to assist because of her
authority as a police officer. She identified herself as an offi-
cer, and she used her official authority to remove the Top Hat-
ters from the festival. These factors are clearly sufficient to
establish she was acting under color of law when removing
the Top Hatters, as the district court properly concluded. See,
e.g., Traver v. Meshriy, 627 F.2d 934, 938 (9th Cir. 1980)
(holding that an off-duty officer serving as a security officer
12082 VILLEGAS v. GILROY GARLIC FESTIVAL
at a bank was acting under color of law when the officer
flashed police identification when arresting the plaintiff).
The City argues that Bergman was only there to “stand by
in case of trouble.” The record suggests otherwise and, at the
minimum, there is certainly a triable issue of fact as to that
assertion. As we noted in Harris, “police intervention and aid
[in private enforcement actions] does constitute state action,”
and “there may be a deprivation within the meaning of § 1983
. . . when [an] officer assists in effectuating [the private
enforcement action] . . . or so intimidates [the plaintiff] as to
cause him to refrain from exercising his legal right[s]. . . .”
664 F.2d at 1127. The record indicates that Bergman used her
authority to assist in removing the Top Hatters, and they
acquiesced in response to her official authority and intimida-
tion.
B
The district court also properly concluded that there were
triable issues of fact as to the City’s liability under § 1983 for
Officer Bergman’s actions. Of course, the mere fact that Offi-
cer Bergman was a state actor is not sufficient to establish the
City’s liability. To survive summary judgment on the issue of
the City’s liability for Officer Bergman’s actions, the Top
Hatters must demonstrate that there is a genuine issue of
material fact as to whether she acted pursuant to a govern-
mental policy or custom. See Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690-94 (1978) (“[L]ocal governments, like
every other § 1983 ‘person,’ . . . may be sued for constitu-
tional deprivations visited pursuant to governmental ‘custom’
even though such a custom has not received formal approval
through the body’s official decisionmaking channels.”). In a
Monell claim, there are three ways to show a policy or custom
of a municipality: (1) by showing “a longstanding practice or
custom which constitutes the standard operating procedure of
the local government entity”; (2) “by showing that the
decision-making official was, as a matter of state law, a final
VILLEGAS v. GILROY GARLIC FESTIVAL 12083
policymaking authority whose edicts or acts may fairly be
said to represent official policy in the area of decision”; or (3)
“by showing that an official with final policymaking authority
either delegated that authority to, or ratified the decision of,
a subordinate.” Ulrich v. City & County of San Francisco,
308 F.3d 968, 984-85 (9th Cir. 2002) (internal quotation
marks and citations omitted).
The key question here is whether the City had a policy or
custom of enforcing the Festival Association’s dress code at
the 2000 festival. There clearly is a triable issue of fact as to
that question. Officer Bergman testified that an incident at the
1992 festival “helped inspire a type of policy tightening down
dress code type issues.” (Emphasis added). In response to the
question of whether she had received any type of directive or
order from the supervisor of police operations as to the dress
code, she responded that officers stationed at the festival
attended briefings where “[the supervisor] would basically
give parameters of the dress code.” She summarized these
parameters by explaining that “we were trying to exclude
group clothing that could inspire conflict.” Consequently, she
testified that she would have enforced the dress code on her
own initiative to expel visitors dressed in apparent gang col-
ors and probably would have ejected a visitor wearing a Nazi
uniform. In short, Officer Bergman’s understanding was that
she was “to exclude any type of group clothing that could
create a problem” and that she had the authority to confront
or eject someone based on dress code. “If there was any type
of question on whether something should or should not be
permitted,” she explained, “we would contact a supervisor
and go through them with their decision.” Sergeant Kludt tes-
tified that the Festival Association gave directions to all of the
officers concerning the dress code policy. During the incident
in question, both he and Officer Bergman explained the dress
code policy to the Top Hatters and indicated the policy would
be enforced.
The direct evidence of custom or policy is much stronger
in this case than in others in which we have held there are tri-
12084 VILLEGAS v. GILROY GARLIC FESTIVAL
able factual issues concerning custom. See Blair v. City of
Pomona, 223 F.3d 1074, 1080 (9th Cir. 2000) (testimony
about “a code of silence” among police officers sufficient to
create a triable issue of fact); Wallis v. Spencer, 202 F.3d
1126, 1142 (9th Cir. 2000) (custom inferred from police con-
duct); Henry v. County of Shasta 132 F.3d 512, 518 (9th Cir.
1997) (same); Navarro v. Block, 72 F.3d 712, 715 (9th Cir.
1995) (911 dispatcher’s testimony that it was the practice of
the Sheriff’s Department not to classify domestic violence
calls as emergencies sufficient to create a triable issue of
fact). Indeed, there is no evidence at all in the record that the
City officers assigned to the festival were not to enforce—or
assist in the enforcement of—the Festival Association’s
unwritten dress code.
In considering the grant of summary judgment, we must
draw all inferences and construe the record evidence in the
light most favorable to the Top Hatters. See Saucier v. Katz,
533 U.S. 194, 201 (2001). Considering the record evidence,
there is little doubt that the City had a policy of assisting in
the enforcement of the Festival Association’s dress code in
2000. Therefore, there exists a triable issue of fact as to the
City’s potential liability under Monell, as the district court
correctly concluded. I thus respectfully disagree with the
majority that summary judgment was appropriate as to the
City.
III
The panel decision concluding that the Top Hatters’ consti-
tutional rights were not violated has been designated as non-
precedential and the majority has declined to reach that issue.
Thus, it is unnecessary to discuss that question in any detail.
However, if we were to reach the issue, I would hold that
under our precedent in Sammartano v. First Judicial District
Court, 303 F.3d 959 (9th Cir. 2002), the Top Hatters’ act of
wearing their motorcycle club vests and insignia was expres-
VILLEGAS v. GILROY GARLIC FESTIVAL 12085
sive conduct deserving of protection under the First Amend-
ment.
For the reasons expressed herein, I respectfully dissent.
GOULD, Circuit Judge, dissenting in part:
Because there was no “policy statement, ordinance, regula-
tion, or decision officially adopted and promulgated” by the
City of Gilroy to enforce the dress code at issue, the city is
not liable under Monell v. Department of Social Services, 436
U.S. 658, 690-91 (1978). Accordingly, I agree with much of
the substance of the majority’s presentation in Part IV of the
majority opinion. Stated another way, I agree with the majori-
ty’s Monell analysis, except for footnote 5 and the sentence
reciting “[b]ecause there is no constitutional violation, there
can be no municipal liability.”
Because I conclude that there is an issue of fact as to
whether the Gilroy Garlic Festival Association and the City of
Gilroy engaged in joint action sufficient to render the festival
a state actor, I join Part I of Judge Thomas’s dissent. If this
fact issue is decided favorably to appellants, then there is the
distinct possibility of constitutional violation, but that issue
cannot correctly be reached on the current record.