Roy Spears v. City of Tucson

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROY SPEARS, No. 15-16874
Plaintiff-Appellant, D.C. No. 4:14-cv-02352-CKJ
v.
MEMORANDUM *
CITY OF TUCSON; CHRISTOPHER
MAGNUS, Chief of Police; C. BURNETT,
Police Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted April 7, 2017
Pasadena, California
Before: McKEOWN and CALLAHAN, Circuit Judges, and QUIST, ** District
Judge.
Roy Spears appeals the district court’s dismissal of his 42 U.S.C. § 1983
action against the City of Tuscon (“the City”), the Tuscon Police Department Chief
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gordon J. Quist, United States District Judge for the
Western District of Michigan, sitting by designation.
of Police, and Officer Clark Burnett. We review de novo the district court’s
mootness determination, Rosebrock v. Mathis, 745 F.3d 963, 970 n.8 (9th Cir.
2014), as well as the district court’s grant of summary judgment, ACLU of Nev. v.
City of Las Vegas, 466 F.3d 784, 790 (9th Cir. 2006). We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
Spears’s claims for declaratory and injunctive relief are moot. The
voluntary cessation of challenged conduct renders a claim moot where “subsequent
events ma[k]e it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.’” Rosebrock, 745 F.3d at 971 (quoting Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). As
the City explains and Spears does not dispute, the City’s policy is to enforce state
trespass laws if a trespass claim is reasonably substantiated. At the time that
Officer Burnett was called to the scene, the records reasonably available to the City
appeared to indicate that North Wyatt and East Farness Drives were privately
owned by the Tuscon Medical Center with no easements. Only a later-
commissioned survey revealed the existence of the 1977 Roadway Use Permit that
granted an easement for public use of those streets and their accompanying
sidewalks.
The City accepts the survey results and now considers the North Wyatt and
East Farness sidewalks to have the same status as any other public sidewalk in the
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City. The City also states that it will maintain this policy even if the Tuscon
Medical Center changes its view in the future. There is no evidence that the City
enforces trespass laws absent a reasonable belief that the public has no right to
access the property. Under these circumstances, it cannot “reasonably be
expected” that the City will bar Spears from protesting on these sidewalks in the
future.
Spears’s nominal damages claim fails because he cannot prove that the City
acted with deliberate indifference to his constitutional rights. Mabe v. San
Bernardino Cty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110–11 (9th Cir.
2001). Deliberate indifference is a stringent standard that is met where “the need
for more or different [action] is so obvious, and the inadequacy so likely to result
in the violation of constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the need.” City of
Canton v. Harris, 489 U.S. 378, 390 (1989). What happened to Spears appears to
be an unusual and isolated application of the City’s general trespass policy. In
addition, the need for a different general trespass policy was not “so obvious”
given the complex nature of First Amendment doctrine regarding the forum status
of privately owned pedestrian thoroughfares. See Venetian Casino Resort, L.L.C.
v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937, 943–45 (9th Cir. 2001).
Ultimately, even assuming a constitutional violation, Spears cannot establish that
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the City’s “deliberate policy caused the constitutional violation alleged.”
Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007).
The district court appropriately held that Officer Burnett is entitled to
qualified immunity. When the Tuscon Medical Center security requested that
Spears and the other protestors be removed, it was reasonable for Burnett to rely on
land records and confirmation from the City that North Wyatt and East Farness
Drives were privately owned. An officer is entitled to qualified immunity where
his actions did not “violate a clearly established constitutional right, where ‘clearly
established’ means that ‘it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.’” Wilkins v. City of Oakland, 350
F.3d 949, 954 (9th Cir. 2003) (citation omitted). This principle from Wilkins
applies equally to Burnett.
AFFIRMED.
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