DocketNumber： No. 00-17425
Citation Numbers： 374 F.3d 739, 2004 WL 1244038
Judges： Berzon, Hug, Lasnik
Filed Date： 3/18/2004
Status： Precedential
Modified Date： 11/5/2024
ORDER AND AMENDED OPINION
ORDER
The opinion filed on March 18, 2004 is amended as follows:
Replace the first paragraph at Slip Op. p. 3374, 361 F.3d 1134, 1152 (9th Cir.2004), with:
“The FTCA specifically permits liability for false arrest when effected by federal
With this amendment, the panel has voted unanimously to deny appellants’ petition for rehearing. Judge Berzon voted to deny the petition for rehearing en banc and Judges Hug and Lasnik so recommend.
The full court was advised of the petition for rehearing en banc, and no judge requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petitions for rehearing and rehearing en banc are DENIED.
OPINION
BACKGROUND
On March 9, 1997, members of the advocacy association Religious Witness with Homeless People (RWHP) conducted a protest at the San Francisco Presidio National Park (the Presidio). The demonstrators opposed a plan by the National Park Service, which administers the Presi-dio, to tear down 466 units of former army housing at the site, known as the Wherry Housing. The Park Service proposed restoring the area to its natural environment. RWHP campaigned for the Park Service to convert these units instead into housing for San Francisco’s poor and homeless. To promote its cause, RWHP had staged three prior sit-ins at the Wherry Housing units that led to members’ arrests and prosecutions for trespass.
The group’s fourth demonstration is the centerpiece of this case. Shortly before March 9, lead plaintiff Sister Bernie Galvin was in contact with the United States Park Police to discuss a permit for RWHP’s planned demonstration.
Sister Bernie and other members of RWHP were again informed by Hay that unless they promised not to engage in civil disobedience, no permit would be issued for their planned march. The demonstrators again refused to make this bargain. They unfurled banners, set up a portable public address system, and began a prayer service. The police promptly informed the demonstrators that if they did not move to a location 150 to 175 yards away designated as a “First Amendment area”
Sister Bernie testified at the protestors’ criminal trial
Most of the eighty-three persons arrested were subsequently convicted of demonstrating without a permit in violation of 36 C.F.R. § 2.51. Those convicted appealed to this court, which reversed the convictions and held that the arrests violated the demonstrators’ First Amendment rights. United States v. Baugh, 187 F.3d 1037 (9th Cir.1999). The plaintiffs here, who are four of the arrested protestors, then sued Hay and Irwin and their employer, the United States, on behalf of a class composed of all the March 9, 1997 demonstrators.
The district court dismissed all of the plaintiffs’ claims. In its first order, the district court granted the defendants’ motion to dismiss the FTCA cause of action and most of the Bivens claims. In November 2000, after the parties agreed to a stipulation of facts, the district court granted, on qualified immunity grounds, defendants’ motion for summary judgment concerning the alleged constitutional tort arising from defendants’ dispersal of the prayer service. The court held:
[A] reasonable officer in the defendants’ position could believe that his conduct was lawful because he could believe that the NPS restrictions were narrowly tailored to serve the NPS’s interests in maintaining the park and protecting its users ... for a variety of reasons. First, the right to an unconditional permit was not clearly established in March 1997, so as far as these defendants knew, the no-trespassing condition was a reasonable way to be sure that RWHP’s speech would not undermine NPS’s interests. Second, the plaintiffs could have received permission to demonstrate either at the Visitor Center lawn or in the parking lot across the street by agreeing to the no-trespassing condition or by requesting a floating permit. Third, a floating permit would be narrowly tailored, because such a permit allows speakers to engage in expressive activity until the activity begins to harm the NPS’s interests.
The district court further held:
[A] reasonable officer in the defendants’ position could have believed ... that the First Amendment area was an ample alternative channel for RWHP to communicate their ideas. Several factors lead the Court to that conclusion. First, the officers were explicitly told that the First Amendment area was the designated location for protest activity. Such a direct instruction from supervisors would have led a reasonable officer*745 to believe that he was acting lawfully.... Second, the officers knew that they could have granted a floating permit at RWHP’s request. If RWHP had asked for a floating permit to demonstrate in the parking lot across the street from the Visitor Center and the officers had denied that request, a reasonable officer in that situation could not believe that the First Amendment area was an ample alternative. However, since the plaintiffs did not ask to move their protest into the parking lot, a reasonable officer could believe that the predesignated First Amendment area was an ample alternative. Third, the location of the First Amendment area relative to the Visitor Center was not so inadequate that a reasonable officer would necessarily have viewed the area as an insufficient channel for RWHP to communicate their views.
The plaintiffs appeal all aspects of the dismissal of their lawsuit. Viewing the evidence in the light most favorable to the nonmoving party, RWHP, and drawing all reasonable inferences in favor of that party, we must determine whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact. Balint v. Carson City, 180 F.8d 1047, 1050 (9th Cir.1999) (en banc).
DISCUSSION
I
Qualiñed Immunity
Qualified immunity analysis proceeds in two stages. We must first inquire whether the plaintiffs have established a constitutional violation. If this threshold is passed, we examine whether defendants’ actions violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quotation marks and citation omitted). The clearly established test is met if “in the light of pre-existing law the unlawfulness [is] apparent.” Id. (quotation marks and citation omitted) (emphasis added). Even in the context of clearly established law, “[i]f the officer’s mistake as to what the law requires is reasonable ... the officer is entitled to the immunity defense.” Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
There are two discrete constitutional violations alleged by the plaintiffs: (1) the denial of a march permit without a concomitant promise on their part not to engage in civil disobedience; and (2) the dispersal of the prayer service that began as an alternative to the march. We examine these claims in turn.
A. The denial of the permit
Plaintiffs ask us to reverse the district court’s ruling that, although Baugh held that it was constitutionally impermissible to require RWHP to promise not to engage in civil disobedience in return for a permit, the law on this issue was not clearly established at the time defendants acted. We decline to do so. We agree with the district court that, before Baugh, the contours of the constitutional right violated by the defendants’ denial of the permit were not “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope, 536 U.S. at 739, 122 S.Ct. 2508 (quotation marks and citation omitted).
Plaintiffs cite Collins v. Jordan, 110 F.3d 1363 (9th Cir.1996) (as amended), decided before the incidents at issue in the current case, in support of their argument that the Baugh holding was sufficiently foreordained to constitute preexisting law that a reasonable officer would have fol
In Collins, however, San Francisco had imposed a total ban on demonstrations. In this case, the Park Police imposed a conditional limitation and were willing to grant the permit had the condition been accepted. Baugh viewed the proposed condition as a time, place, and manner restriction and analyzed it as such. 187 F.3d at 1043. In contrast, because it involved a total ban, Collins did not consider San Francisco’s demonstration ban under the time, place, and manner rubric. Baugh was therefore the first ease to consider whether a permit conditioned on an agreement to refrain from illegal activity imposes a valid time, place, and manner restriction in a public forum or, instead, an unconstitutional restriction on freedom of speech.
Baugh applied standards applicable to public fora like the Presidio, because “a public park, such as the Presidio, represents a quintessential public forum.” 187 F.3d at 1042 (quotation marks and citation omitted). Permissible restrictions on expression in public fora must be content-neutral, be narrowly tailored to serve an important governmental interest, and leave open ample alternative channels for the communication of the message. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Baugh found that the restrictions imposed by the defendants were content-neutral, 187 F.3d at 1043, but not sufficiently narrowly tailored to meet the second prong of the time, place, and manner standard: that the limitation “not burden substantially more speech than necessary to further the [government’s significant] interests.” Id. We reached this conclusion in Baugh because (1) the organizers could not warrant in good faith that all the demonstrators would comply with the law; and (2) the Park Service could have more narrowly tailored its restriction by issuing the permit and then arresting the demonstrators if and when they trespassed. Id. at 1043-44.
Baugh’s conclusions have firm support in the case law relied upon. Nonetheless, there was no case at that juncture that had addressed the question whether conditioning a march permit on a promise to abide by the law when there was a history of organized civil disobedience by the same group along the same route is an insufficiently tailored manner restriction.
The Park Police’s determination to impose the condition, while mistaken under the First Amendment, was at the time (although it would not be now) a legal error that reasonable officials could make in light of then-existing precedents. Nor, as in Hope, where “[a]rguably, the violation was so obvious that [the Court’s] own Eighth Amendment cases gave the respondents fair warning that their conduct violated the Constitution,” 536 U.S. at 741, 122 S.Ct. 2508, was the invalidity of imposing the restriction at issue self-evident, even in the absence of “fundamentally sim
We conclude that the district court was correct in granting defendants’ motion for summary judgment for the permit denial on the ground of qualified immunity.
B. The dispersal of the prayer service
Applying the two-prong Saucier qualified immunity standard to the second claim of constitutional violation before us, the dispersal of the prayer service, is less straightforward. As will appear, Baugh did not decide on the merits this First Amendment issue as it is presented now, so we must first inquire for ourselves whether the plaintiffs have proven a constitutional violation. Only if we answer that question in the affirmative — which we do — can we then turn to the second issue, whether “in the light of pre-existing law the unlawfulness [is] apparent.” Hope, 536 U.S. at 739, 122 S.Ct. 2508.
1. First Amendment Protection Accorded Choice of Location of Speech
As Baugh recognized, “the First Amendment applies with particular force here,” because “[p]arks ... have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” 187 F.3d at 1042 (quoting Grossman v. City of Portland, 33 F.3d 1200, 1204-05 (9th Cir.1994), in turn quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.)). As a restriction of speech in a “quintessential public forum,” id. (quoting Grossman, 33 F.3d at 1204), the relegation of the prayer service to the “First Amendment area,” like the conditioning of a permit on a promise not to engage in civil disobedience, was constitutional only if it was a reasonable time, place, and manner restriction on speech. See, e.g., Ward, 491 U.S. at 791, 109 S.Ct. 2746.
The way in which the prayer service issue is presented with regard to qualified immunity in this case implicates a slightly different time, place, and manner issue from the one we most often encounter: “The propriety of a place for use as a public forum does turn on the relevance of the premises to the protest, but this relation may be found in two ways. In some situations the place represents the object of protest, the seat of authority against which the protest is directed. In other situations, the place is where the relevant audience may be found.” Wolin v. Port of N.Y. Auth., 392 F.2d 83, 90 (2d Cir.1968) (citations omitted).
In most cases concerning time, place, and manner restrictions on protest activity in public fora, including most recent cases from this court, the demonstrators or leaf-letters are trying to present their point of view to an audience composed of individuals who gather at the site in question, the second Wolin category. Either the location is one where many people habitually gather, providing an inexpensive way for individuals with a message to communicate to reach a general audience composed of a
Bay Area Peace Navy v. United States, 914 F.2d 1224 (9th Cir.1990), heavily relied upon by the plaintiffs in this case, is of the latter variety. “[T]he Peace Navy, a nonprofit association dedicated to using small boats for peaceful anti-war and anti-militarization demonstrations ... engaged in a counter-demonstration during Fleet Week by parading in formation in front of the invited guests on the pier during the parade of real Navy ships farther out in the Bay.” Id. at 1225-26. The intended audi
In this case, however, despite plaintiffs’ heavy reliance on Bay Area Peace Navy, it has become clear that they were not trying to communicate with an on-site audience. Plaintiffs’ complaint noted that “there was no vehicle traffic to speak of in that area or the park as a whole at that time[and] that next to no one was visiting the visitors center.” Consistent with this representation, counsel stated at oral argument: “[N]obody’s there. It’s a Sunday. It’s the thing, the symbolic presence in front of the building ... which is the seat of the power they’re protesting against, is important. ... They just thought they can have this prayer service ... an observance, a witness that they do in front of the seat of power.” When it was suggested to counsel that “[tjhere’s no audience here that was being denied the message,” he replied: “That’s sort of true .... [tjhere weren’t people around.”
That the protestors selected the location of their “witness” within a traditional public forum area not because of the audience present but because of the significance of the location for the content of their message does not detract from their strong First Amendment interest in speaking at the place they chose. In common experience, speakers rely upon location to inform the content of their speech. Television news reporters, for instance, routinely travel to locations that are illustrative of their stories even though they could read the same texts from their studios. Doing so does not change their intended audience. But speaking in front of a relevant backdrop gives greater force to the messages conveyed to that audience.
In other instances, as here, the significance of the location is primarily relevant to the speakers themselves, affecting the shared meaning of the ceremony for its participants. Cf. White House Vigil for the ERA Comm. v. Clark, 746 F.2d 1518,
As these illustrations show, individual choice of both communicative aspects, message and manner of presentation, is critical. The Supreme Court has so recognized, making clear that “[t]he First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it.” Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 790-91, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). It is therefore the “general rule” that “the speaker has the right to tailor the speech.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); see also Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (“[I]t is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.”). Messages can be inchoate, see Hurley, 515 U.S. at 569-70, 115 S.Ct. 2338 (“a private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech”), and can depend on a speaker’s own, internal understandings of his or her message. See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632-33, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (“A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.”).
The Court has recognized that location of speech, like other aspects of presentation, can affect the meaning of communication and merit First Amendment protection for that reason. In City of Ladue v. Gilleo, the question was whether citizens may display message-carrying signs from their own residences. Said the Court:
Displaying a sign from one’s own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means.... A sign advocating “Peace in the Gulf’ in the front lawn of a retired general or decorated war veteran may provoke a different reaction than the same sign in a 10-year-old child’s bedroom window or the same message on a bumper sticker of a passing automobile. An espousal of socialism may carry different implications when displayed on the grounds of a stately mansion than when pasted on a factory wall or an ambulatory sandwich board.
512 U.S. 43, 56, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994); see also Million Youth March, Inc. v. Safir, 18 F.Supp.2d 334, 348 (S.D.N.Y.1998) (relying on City of Ladue for the proposition that plaintiffs choice of
As speakers may generally control the presentation of their message by choosing a location for its importance to the meaning of their speech, they may ordinarily— absent a valid time, place, and manner restriction — do so in a public forum. The public forum doctrine stems from the recognition that “one who is rightfully [in a public forum] carries with him there as elsewhere the constitutional right to express his views in an orderly fashion.” Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 87 L.Ed. 869 (1943).
This court and other courts of appeal have so recognized, applying traditional public forum analysis to protest activity where “the place represents the object of protest, the seat of authority against which the protest is directed,” as well as where “the place is where the relevant audience may be found.” Wolin, 392 F.2d at 90. In United States v. Griefen, 200 F.3d 1256 (9th Cir.2000), the defendants were deep in a National Forest, engaged in a protest against, inter alia, “the conduct, policies, and practices of the United States Forest Service.” Id. at 1259. There is no indication that there was an on-site audience other than the co-defendants themselves and the construction workers at the site. Instead, the remote location was probably chosen for its symbolic significance to then-message. See id. at 1258 (protestors were spotted only when officials of the Forest Service flew over the area to observe a construction project). We treated the case under the time, place, and manner standard applicable to communicative activities in a traditional public forum, citing Hague, Ward, and Grayned, all seminal traditional public forum cases. Griefen, 200 F.3d at 1260-62.
Similarly, in Olivieri v. Ward, 801 F.2d 602 (2d Cir.1986), protestors chose their location in front of St. Patrick’s Cathedral to convey “[t]he message ... that they are members of the Catholic Church which they do not forsake because of their homosexuality.” Id. at 606. The Second Circuit applied the traditional public forum time, place, and manner standard. Id. at 605; see also United States v. Johnson, 159 F.3d 892, 893-95 (4th Cir.1998) (applying traditional public forum time, place, and manner standard to the National Forest gathering of “a group that periodically gathers in natural surroundings, particularly to celebrate the solstices and equinoxes”).
In sum, there is a strong First Amendment interest in protecting the right of citizens to gather in traditional public forum locations that are critical to the content of their message, just as there is a strong interest in protecting speakers seeking to reach a particular audience.
2. Application of Time, Place, and Manner Standard
The interesting constitutional issue presented by this case is the application of the time, place, and manner framework to a situation in which the protestors’ interest in remaining at a particular location stems from the importance of that location to the content of their message, rather than their interest in reaching an audience likely to gather at that location. As the time, place, and manner standard evolved with more precision in recent years, that standard has been stated as the three-part test we quoted earlier: “To qualify as a permissible restriction, the regulation must be content neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the message.” Baugh, 187 F.3d at 1042. There is no dispute here that the decision to relegate the prayer service to the “First Amendment area” was content-neutral. Rather, plaintiffs contest the district court’s determinations on the second and third prongs of the time, place, and man
a. Narrotu Tailoring
The narrow tailoring requirement has been refined since it was first announced in three respects: First, as long as the government’s interest in a regulation of speech in a public forum is substantial, the regulation “need not be the least restrictive or least intrusive alternative.” One World One Family Now v. City and County of Honolulu, 76 F.3d 1009, 1014 (9th Cir.1996) (quotation marks and citation omitted). So long as the governmental interests “would be achieved less effectively absent the regulation” and the regulation achieves its ends “without ... significantly restricting a substantial quantity of speech that does not create the same evils,” the regulation is sufficiently narrowly tailored. Ward, 491 U.S. at 799 & n. 7, 109 S.Ct. 2746. Second, although the regulation need not be minimally restrictive, the availability of several obvious less-restrictive alternatives is pertinent in deciding whether the regulation burdens substantially more speech than necessary to achieve its purposes. See Project 80’s, Inc. v. City of Pocatello, 942 F.2d 635, 638 (9th Cir.1991). Third, where there is a generic regulation, its validity “need not be judged solely by reference to the demonstration at hand,” but can also take into account the need for the regulation as applied to other speakers. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 296-97, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); see also ACORN v. City of Phoenix, 798 F.2d 1260, 1270 (9th Cir.1986) (“Even if occasional solicitation of motorists by one group could be controlled with a maximum effort on the city’s part, Phoenix may appropriately consider the cumulative impact if many other organizations likewise decided to engage in this activity on a pervasive or regular basis.”).
In this instance, Baugh recognized that “[t]he government had a significant interest in protecting the Presidio’s facilities and its users, including the protesters.” 187 F.3d at 1043. This was a fairly large group of protestors. For a time, according to Sister Bernie’s testimony, the group “was out in the street,” although the record does not indicate that there were any cars in the vicinity then. There was at least one visitor to the Visitor Center while the RWHP group was in front of it; Hay testified that he “talked to one old gentleman in particular, he said he was a Presi-dio vet and he had come to see the Presi-dio that day. I told him we would escort him in and[he] declined and said he didn’t want to bother.” There was certainly the possibility, indeed, the likelihood, that more members of the public would come to the Visitor Center later on, and there was no way for the defendants to know how long the prayer service would continue. Additionally, had the RWHP group been permitted to use the lawn in front of the Visitor Center for their large protest, then other groups could claim such entitlement to use the area as well, on days when the massing of many people in the area in front of the Visitor Center would be more likely to impede access to the building. For all these reasons, the defendants had a significant interest in ensuring that the plaintiffs’ prayer service was conducted so as not to impede access to the Visitor Center or use of the Presidio’s roadways.
That view of the protection accorded speech in a public forum, however, cannot suffice to protect public forum speech of the kind we have here, namely, speech in which a chosen location is a critical aspect of the message communicated by speakers amongst themselves. We do not read any of the earlier cases as addressing this precise issue, or as mandating a quantitative approach to the narrow tailoring inquiry when that approach does not capture the First Amendment interest asserted. Instead, where, as here, “the location[is] an essential part of the message sought to be conveyed,” Nationalist Movement, 12 F.Supp.2d at 192, a court must consider the degree of distortion of the message conveyed that is effected by the regulation in question.
With that focus in mind, we conclude that the requirement for RWHP to use the “First Amendment area” did burden its speech to a substantially greater degree than was needed to achieve the government’s purposes. One can see the Visitor Center from the “First Amendment area” but the sight line was partially obstructed by trees, and the view is from a distance equivalent to two city blocks (assuming 20 blocks to a mile).
Hay testified that the protestors, had they asked, would have been allowed to use the much closer parking lot just across the street, directly in front of the Visitor Center. That obvious alternative would have distorted RWHP’s witnessing considerably less, as the connection between the Visitor Center and the protest activity would have been maintained. Multiple obvious alternatives can inform the tailoring inquiry. See Project 80’s, 942 F.2d at 638. Similarly, the fact that the defendants themselves recognized that day the availability of the parking lot alternative as sufficient to meet the Park Service’s purposes, yet failed to offer it to the protestors, supports our conclusion that the requirement imposed was not sufficiently naiTowly tailored under the circumstances.
By way of comparison, the restriction we upheld in Griefen involved a different and stronger governmental interest: “Faced with a clear and present threat to health and safety and property, the Forest Service appropriately established a limited security zone around the danger area.” 200 F.3d at 1261 (emphasis added). In Grief-en, moreover, because the message depended on a connection between the protestors and the Nez Perce Forest and that connection was maintained, the location-specific aspects of the message were adequately preserved. See id. at 1262 (“Having to move 150 feet from a construction area made dangerous by illegal destructive behavior did not substantially burden the appellants’ rights.”).
Here, the “First Amendment area” was more than three times as far removed from the Visitor Center as were the protestors in Griefen from their chosen location. See id. at 1260 (“The protestors were not ejected from the forest or even from the vicinity of the construction site, only from 150 feet to each side of the center of the work zone.”). Unlike in Griefen, where the protestors were free to encircle the object of their expression at will, RWHP members were given only one option. As the “First Amendment area” was located so that the visual connection with the Visitor Center was partially obstructed, remote, and oblique, the protestors’ message of confronting the authority represented by the building was inhibited to an extent greatly exceeding that permitted in Griefen.
We therefore conclude that the relegation of the prayer service to the “First Amendment area” burdened the plaintiffs’ speech to a substantially greater degree than necessary to achieve the Park Service’s purposes.
b. Ample Alternative
The third prong of the time, place, and manner standard as traditionally stated asks whether the “First Amendment area” restriction left “open ample alternative channels for communication of the information.” ACLU of Nevada, 333 F.3d at 1106 (quoting Ward, 491 U.S. at 791, 109 S.Ct. 2746). The foregoing analysis suggests that focusing, as the cases almost uniformly do,
Ward’s use of the term “channels” of communication suggests such an audience-focused approach, perhaps. See 491 U.S. at 802, 109 S.Ct. 2746. Yet, for the reasons already stated, we do not believe that restrictions on speech in public fora are permitted without regard to the impact on the content of the message itself, even if the intended audience is non-existent or is only the other members of a protesting group. Ward itself so recognizes. See id. (“[T]he guideline continues to permit expressive activity in the bandshell, and has no effect on the quantity or content of that expression beyond regulating the extent of amplification.” (emphasis added)). Rather, analysis of time, place, and manner restrictions should include an inquiry into whether the regulation so alters the content of a message in a public forum as to hamper speakers from conveying what they mean to convey.
We so assumed in Griefen without explicitly flagging the issue. In Griefen, we did not ask, as in Bay Area Peace Navy and similar cases, whether the regulation in question preserved the ability to convey the message to an intended, on-site audience. Instead, our inquiry was whether the “tailoring left [the protestors] with ample opportunities in the Nez Perce Forest and elsewhere lawfully to express their views.” 200 F.3d at 1261 (emphasis added). That approach frames the issue more appropriately than the traditional formulation when the impairment of speech consists not of interference with transmission of a message to an on-site audience but of asserted interference with the content of the message through severance of the speech from a location critical to that content. More precisely, the question must be whether the regulation prevents the speakers from expressing their views, where that expression depends in whole or part on the chosen location.
Applying that standard here, there are strong arguments both favoring a conclusion that First Amendment rights were violated and opposing that conclusion. On the one hand, as noted with regard to the narrow tailoring issue, the protestors’ relegation to the “First Amendment area” seriously distorted the intended incorporation of the location into RWHP’s message. On the other hand, the demonstrating RWHP members retained some ability to connect their message to the venue that was critical to its content; the building was visible from the area where they were permitted to speak, although faintly, obliquely, and with partial obstruction.
Ultimately, we need not decide whether the defendants left ample alternatives for expression of RWHP’s message, as the defendants’ directive in any event failed the narrow tailoring inquiry for reasons already surveyed. The directive was therefore a violation of plaintiffs’ free speech rights.
c. Clearly Established Law
There is qualified immunity for the narrow tailoring violation if the law at the time of the events in question was not “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope, 536 U.S. at 739, 122 S.Ct. 2508 (quotation marks and citation omitted). “The relevant question ... is the objective (albeit fact-specific) question whether a reasonable officer could have believed [the prayer service
In the context of the case law established in March 1997, the application of the time, place, and manner standard to circumstances in which location rather than audience is essential to the message being conveyed compels the conclusion that a reasonable official would not have had sufficiently clear legal guidance to avoid violating the plaintiffs’ constitutional rights. As explicated above, cases prior to Griefen that applied the time, place, and manner standard emphasized the communication of a message to an audience, rather than the content-related impact of a chosen location, and took a quantitative rather than qualitative approach to the narrow-tailoring inquiry. Although the defendants were wrong in their assumption that terminating the prayer service was a narrowly tailored response to the threatened governmental interests, their error was not unreasonable given the law as clearly established in March 1997. A reasonable official could have distinguished Bay Area Peace Navy’s prohibition of a 75 yard restriction on protest targeting an intended audience on the ground that RWHP had no apparent audience, so that the relocation of their prayer service did not substantially burden their speech. It was not until our decision in Griefen that we analyzed time, place, and manner restrictions as they apply to site-specific expressive interests without regard to the opportunity to reach an on-site audience. Until then, the constitutional right violated by the defendants was not clearly established. The defendants are therefore entitled to qualified immunity for the narrow tailoring violation.
Moreover, even if we were to hold that the “First Amendment area” did not provide an “ample alternative” for the communication of RWHP’s message, this violation would not lead to liability for the defendants either. “ ‘Clearly established’ for purposes of qualified immunity means that the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Beier v. City of Lewiston, 354 F.3d 1058, 1068 (9th Cir.2004) (quotation marks and citation omitted). Our application of the time, place, and manner standard to the circumstances of this case demonstrates that the right violated by the defendants-be it the second or the third prong of the standard-has contours that were clearly established only subsequent to the events in question.
The central difference between the plaintiffs’ claim and that accepted in cases such as Bay Area Peace Navy is the absence of communication with an on-site audience. See Bay Area Peace Navy, 914 F.2d at 1229 (“An alternative is not ample if the speaker is not permitted to reach the ‘intended audience.’ ”). The manner in which this distinction affects First Amendment time, place, and manner analysis is, as outlined above, similar for both narrow tailoring and ample alternatives. We therefore conclude, without deciding whether there was a violation of the “ample alternatives” prong, that qualified immunity would apply even to any hypothetical violation by the defendants, because the law of “ample alternatives” in the absence of an audience was not clearly established in March 1997.
The defendants are therefore entitled to qualified immunity on the plaintiffs’ First Amendment Bivens cause of action.
II
Federal Tort Claims Act
The government argues that we lack jurisdiction over plaintiffs’ FTCA
The FTCA specifically permits liability for false arrest when effected by federal law enforcement officers. See 28 U.S.C. § 2680(h). Under the Act, “liability is determined by the tort law of the state where the claim arose.” Gasho v. United States, 39 F.3d 1420, 1427 (9th Cir.1994). In general, the United States is liable “to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. We have held, however, that “[law enforcement] obligations make the law of citizen arrests an inappropriate instrument for determining FTCA liability.” Amsberg v. United States, 757 F.2d 971, 979 (9th Cir.1985); see also Ting v. United States, 927 F.2d 1504, 1514 (9th Cir.1991). Applying California law, which “protects a law enforcement officer from liability for false arrest ... where the officer, acting within the scope of his or her authority, either (1) effects a lawful arrest or (2) has reasonable cause to believe the arrest is lawful,” Cervantes v. United States, 330 F.3d 1186, 1188 (9th Cir.2003), we conclude that the United States is not liable under the FTCA.
The defendants argue that they properly arrested the RWHP members, who were violating 36 C.F.R. § 2.51 (a)’s prohibition against demonstrations without a permit. Given our conclusion above that the defendants’ permit denial was not a violation of clearly established law, the officers “had reasonable cause to believe the arrest was lawful.” Cal. PemCode § 847(b)(1). We therefore affirm the district court’s dismissal of the FTCA claim.
For the foregoing reasons we affirm the district court’s rulings on qualified immunity and liability under the FTCA. We therefore affirm the grant of summary judgment.
AFFIRMED.
. The relevant regulations, unchallenged here, are found at 36 C.F.R. § 2.51 and provide in relevant part:
(a) Public assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views are allowed within park areas, provided a permit therefor has been issued by the superintendent.
(c) The superintendent shall, without unreasonable delay, issue a permit on proper application unless:
(1)A prior application for a permit for the same time and place has been made that has been or will be granted and the activities authorized by that permit do not reasonably allow multiple occupancy of that particular area; or
(2) It reasonably appears that the event will present a clear and present danger to the public health or safety; or
(3) The event is of such nature or duration that it cannot reasonably be accommodated in the particular location applied for, considering such things as damage to park resources or facilities, impairment of a protected area's atmosphere of peace and tranquillity, interference with program ac*743 tivities, or impairment of public use facilities.
(e) The superintendent shall designate on a map, that shall be available in the office of the superintendent, the locations available for public assemblies. Locations may be designated as not available only if such activities would:
(1) Cause injury or damage to park resources; or
(2) Unreasonably impair the atmosphere of peace and tranquillity maintained in wilderness, natural, historic or commemorative zones; or
(3) Unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the National Park Service; or
(4) Substantially impair the operation of public use facilities or services of National Park Service concessioners or contractors; or
(5)Present a clear and present danger to the public health and safety.
. The Park Service's Compendium of Regulations for the Presidio sets out the location of these predesignated areas. See United States v. Baugh, 187 F.3d 1037, 1041 (9th Cir.1999) (“The compendium of implementing regulations designates three locations within the Presidio for which the Park Service will issue permits for First Amendment activities.”). The parties stipulated that the Compendium and Park Service practice allow for '"floating permits” to cover areas other than the predesignated "First Amendment areas,” but that once the negotiations concerning the demonstration reached an impasse "neither side raised the possibility of continuing the plaintiffs’ protest activity in any third location, such as the parking lot across from the headquarters building.”
. All references to testimony in this opinion are taken from the protestors’ criminal trial.
. Although the plaintiffs brought this action “as a class,” there has been no certification of the class. It appears that all four of the plaintiffs were arrested and convicted. See Baugh, 187 F.3d at 1037 (listing Bernie Gal-vin, Ken Butigan, Jeff Johnson, and Karen Oliveto in the caption as defendants). We therefore do not address the statute of limitations question decided by the district court. That question concerns only demonstrators who were not arrested and convicted. There is no dispute that this suit was timely with respect to demonstrators who were arrested and convicted because, as the parties stipulated, no cause of action for such individuals accrued until their convictions were reversed. See Heck v. Humphrey, 512 U.S. 477, 489, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
. Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002), does not affect our analysis of the prayer service dispersal. The Court in Thomas considered only a challenge to the breadth of official discretion, not "requirements of our time, place, and manner jurisprudence.” Id. at 323 n. 3, 122 S.Ct. 775.
. See, e.g., Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 643, 655, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (holding with respect to a state fair, "a major public event ... attracting] visitors from all over Minnesota as well as from other parts of the country,” that ”[t]he First Amendment protects the right of every citizen to reach the minds of willing listeners and to do so there must be opportunity to win their attention” (quotation marks and citation omitted)); Schneider v. New Jersey, 308 U.S. 147, 154, 163, 60 S.Ct. 146, 84 L.Ed. 155 (1939) (noting in a case where the appellant "distributed handbills to pedestrians” that "the streets are natural and proper places for the dissemination of information and opinion”); ACLU of Nevada v. City of Las Vegas, 333 F.3d 1092, 1106 (9th Cir.2003), cert. denied, - U.S. -, 124 S.Ct. 1077, 157 L.Ed.2d 897 (2004) (upholding plaintiffs’ challenge to, inter alia, an ordinance prohibiting leafleting "to passersby” in a publicly-owned pedestrian mall); Edwards v. City of Coeur d’Alene, 262 F.3d 856, 867 (9th Cir.2001) (concluding that an ordinance provided a demonstrator "no other effective and economical way ... to communicate his or her message to a broad audience during a parade or public assembly” when it prohibited " attaching] a handle to his [or her] sign to hoist it high in the air” (emphasis added)); One World One Family Now v. City and County of Honolulu, 76 F.3d 1009, 1014-15 (9th Cir.1996) ("Nothing prevents plaintiffs here from reaching their intended audience — the tourists congregating in Waikiki.”); Genitsen v. City of Los Angeles, 994 F.2d 570, 573 (9th Cir.1993) ("Gerritsen has distributed his literature and made speeches in a variety of cities and parks in the Los Angeles area, but El Pueblo Park is one of his favorite sites because of its many Mexican American and Mexican visitors.”); Gaudiya Vaishnava Soc. v. City and County of San Francisco, 952 F.2d 1059, 1060 (9th Cir.1990) (enjoining a permit requirement for the sale of certain merchandise at tourist destinations because it affected activities of groups such as Greenpeace, which "sets up tables ... to bring its message to the general public and solicit financial contributions and membership” (emphasis added)).
. See, e.g., Schenck v. Pro-Choice Network, 519 U.S. 357, 362, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) ("[D]efendants had consistently engaged in ... blockades ... at facilities in the Western District of New York where abortions were performed.”); Carey v. Brown, 447 U.S. 455, 457, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (protestors "participated in a peaceful demonstration on the public sidewalk in front of the home of [the] Mayor of Chicago”); Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1147 (9th Cir.2003) ("[U]nion representatives from Local 57 distributed handbills to customers outside of the Disney Store in the Glendale Galleria .... ”); Foti v. City of Menlo Park, 146 F.3d 629, 633 (9th Cir.1998) (appellants "regularly picket and leaflet on a public sidewalk in the City of Menlo Park ... in front of a Planned Parenthood facility”); see also Weinberg v. City of Chicago, 310 F.3d 1029, 1042 (7th Cir.2002) ("The United Center is a unique location for the sale of Weinberg's book, especially since the target market for his book is [Chicago] Blackhawk [hockey] fans.”); Students Against Apartheid Coalition v. O’Neil, 660 F.Supp. 333, 339-40 (W.D.Va. 1987), aff'd 838 F.2d 735 (4th Cir.1988) (holding that university prohibition on erection of symbolic shanties on lawn of building where Board of Visitors met was not made constitutional by permission to erect shanties elsewhere on campus, in a location not visible to members of the Board); New Alliance Party v. Dinkins, 743 F.Supp. 1055, 1066 (S.D.N.Y.1990) (concluding that alternative protest location was inadequate because it permitted "only a glimpse of the northern corner of [Gracie] Mansion” where the intended audience was located).
. The court in Baugh regarded ''[t]he Park Service officials and the public ... at the Visitor Center” as the intended audience and held that the 150 to 175 yard distance between the Visitor Center and the First Amendment area was too great to allow RWHP to reach that audience. 187 F.3d at 1044. The plaintiffs in this appeal have crafted their First Amendment claim differently so that it is consistent with the facts they have chosen to present, as they are entitled to do. Neither party has invoked issue preclusion based on Baugh, see Deutsch v. Flannery, 823 F.2d 1361, 1364 n. 2 (9th Cir.1987) ("Issue preclusion is an affirmative defense that may be waived if not pleaded.”), and we do not do so sua sponte, particularly given that the individual defendants here were not parties in Baugh. See Disimone v. Browner, 121 F.3d 1262, 1268 (9th Cir.1997) ("Courts are granted broad discretion to apply the doctrine of collateral estoppel.”); Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir.1988) (holding that a court has no obligation to raise preclusion on its own).
. Several Supreme Court cases from the era of the civil rights movement implicitly recognized this critical connection between message and public locations. See, e.g,, Brown v. Louisiana, 383 U.S. 131, 139, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (opinion of Fortas, J.) (reversing convictions where protestors “sat and stood in the [reading] room, quietly, as monuments of protest against the segregation of the [public] library''); Cox v. Louisiana, 379 U.S. 559, 560, 566, 575, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) (reversing convictions under a statute prohibiting "pickets or parades in or near a building housing a court of the State of Louisiana” for a "demonstration [that] was held in the vicinity of the courthouse where the students' trials would take place”); Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (reversing convictions for breach of the peace where ”[t]he petitioners felt aggrieved by laws of South Carolina which allegedly 'prohibited Negro privileges in this State.’ They peaceably assembled at the site of the State Government and there peaceably expressed their grievances 'to the citizens of South Carolina, along with the Legislative Bodies of South Carolina.’ ” (emphasis added) (footnote omitted)). Compare Adderley v. Florida, 385 U.S. 39, 45, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (upholding convictions where a "particular jail entrance and driveway were not normally used by the public ” (emphasis added)).
. See Ward, 491 U.S. at 802, 109 S.Ct. 2746 ("[T]he guideline continues to permit expressive activity in the bandshell, and has no effect on the quantity or content of that expression beyond regulating the extent of amplification.”); Foti, 146 F.3d at 641 ("While each restriction may diminish the amount of speech that Foti and Larsen individually may make on the abortion issue, they do not reduce the total quantum of speech on a public issue.” (quotation marks and citation omitted)); Perry v. Los Angeles Police Dep't, 121 F.3d 1365, 1371 (9th Cir.1997) ("[T]he nonprofit distinction significantly restricts a substantial quantity of speech-namely expressive speech by people who are not nonprofit members-that does not create the same evils as purely commercial activity on the Boardwalk ...."); One World, 76 F.3d at 1014 ("Because the peddling ordinance addresses these problems 'without ... significantly restricting a substantial quantity of speech that does not create the same evils,’ [it] is narrowly tailored.” (citation omitted)); Grossman, 33 F.3d at 1207-08 ("Because section 010 'restricted a substantial quantity of speech that [did] not impede [the City’s] permissible goals,’ it is unconstitutional.” (citation omitted)).
. Our analysis is somewhat hampered by the parties’ agreement at oral argument in the district court "that the Court should incorporate its knowledge [of the layout of the Presi-dio and the area comprising the Visitor Center and the First Amendment area] into the legal conclusion regarding whether a reasonable officer in the defendants' position could believe that his conduct was lawful.” This stipulation creates a dilemma for us as a reviewing court, as we have no means of determining exactly what the district judge knows about the layout of the Presidio. The judge's "familiarity” informed his legal conclusion, yet we are constrained to review de novo the court’s grant of summary judgment on the qualified immunity question. See Balint, 180 F.3d at 1050. Fortunately, there are photographs and a map in the record that suffice for us to make the requisite determinations concerning the layout of the spaces in
. See, e.g., Bay Area Peace Navy, 914 F.2d at 1229 ("The Peace Navy cannot employ effective alternative water-borne methods of communicating with the audience on the pier ...see also One World, 76 F.3d at 1014 ("[T]he ordinance forecloses one narrow form of expression-side-walk sales of message-bearing merchandise-and leaves the plaintiffs free to disseminate and seek financial support for their views through myriad and diverse alter
. See also Thames Shipyard & Repair Co. v. United States, 350 F.3d 247, 254-55 (1st Cir.2003) ("[C]ourts have read the Supreme Court's discretionary function cases as denying protection to actions that are unauthorized because they are unconstitutional, proscribed by statute, or exceed the scope of an official’s authority.” (citing, inter alia, Nurse)); Raz v. United States, 343 F.3d 945, 948 (8th Cir.2003) (discretionary function exception does not apply because plaintiff alleged that conduct violated his constitutional rights); Medina v. United States, 259 F.3d 220, 225 (4th Cir.2001) (In "determin[ing] the bounds of the discretionary function exception found in § 2680(a) ... we begin with the principle that federal officials do not possess discretion to violate constitutional rights or federal statutes.” (quotation marks and citations omitted)); Myers & Myers, Inc. v. United States Postal Serv., 527 F.2d 1252, 1261 (2d Cir.1975) (“It is, of course, a tautology that a federal official cannot have discretion to behave unconstitutionally or outside the scope of his delegated authority.”).
. While the district court's ruling, rendered before Nurse was decided, was based on an analysis of the discretionary function exception to the FTCA, we may affirm on any ground supported by the record. Serrano v. Francis, 345 F.3d 1071, 1076-77 (9th Cir.2003).