Riley's American Heritage Farm v. James Elsasser

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RILEY’S AMERICAN No. 20-55999
HERITAGE FARMS, a
California corporation; JAMES D.C. No.
PATRICK RILEY, an 5:18-cv-02185-JGB-
individual, SHK
Plaintiffs-Appellants,
v. ORDER AND
AMENDED OPINION
JAMES ELSASSER; STEVEN
LLANUSA; HILARY LACONTE;
BETH BINGHAM; NANCY
TRESER OSGOOD; DAVID S.
NEMER; ANN O’CONNOR;
BRENDA HAMLETT,
Defendants-Appellees,
and
CLAREMONT UNIFIED
SCHOOL DISTRICT,
Defendant.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
2 RILEY’S AM. HERITAGE FARMS V. ELSASSER
Argued and Submitted August 31, 2021
Pasadena, California
Filed March 17, 2022
Amended April 29, 2022
Before: Sandra S. Ikuta, Mark J. Bennett, and
Ryan D. Nelson, Circuit Judges.
Order;
Opinion by Judge Ikuta
SUMMARY*
Civil Rights
The panel (1) amended its opinion affirming in part and
reversing in part the district court’s summary judgment for
public school defendants in a 42 U.S.C. § 1983 action
alleging First Amendment violations, (2) denied a petition for
rehearing, (3) denied a petition for rehearing en banc on
behalf of the court, and (4) ordered that no further petitions
shall be entertained.
Plaintiff James Patrick Riley is one of the principal
shareholders of Riley’s American Heritage Farms (“Riley’s
Farm”), which provides historical reenactments of American
events and hosts apple picking. Between 2001 and 2017,
schools within the Claremont Unified School District booked
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RILEY’S AM. HERITAGE FARMS V. ELSASSER 3
and attended field trips to Riley’s Farm. In 2018, Riley used
his personal Twitter account to comment on a range of
controversial social and political topics. After some parents
complained and a local newspaper published an article about
Riley and his Twitter postings, the School District severed its
business relationship with Riley’s Farm. Patrick Riley and
Riley’s Farm brought suit against the School District,
individual members of the school board, and three school
administrators (the “School defendants”), alleging retaliation
for protected speech.
In partially affirming the district court’s summary
judgment in favor of the School defendants, the panel held
that although there was a genuine issue of material fact on the
issue of whether the Riley plaintiffs’ First Amendment rights
had been violated, the individual School defendants were
entitled to qualified immunity as to the damages claims
because the right at issue was not clearly established when the
conduct took place.
In reaching this conclusion, the panel first determined that
the relationship between the Riley plaintiffs and the School
District was analogous to those between the government and
a government contractor and that the character of the services
provided by the Riley plaintiffs justified the application of
the framework established in Pickering v. Bd. of Ed. of Twp.
High Sch. Dist. 205, 391 U.S. 563, 568 (1968). Applying
the two-step burden-shifting approach for government
contractors alleging retaliation, the panel held that the
plaintiffs had established a prima facie case of retaliation
against the School defendants that could survive summary
judgment. The panel held that there was no dispute that Riley
engaged in expressive conduct, that some of the School
defendants took an adverse action against Riley’s Farm that
4 RILEY’S AM. HERITAGE FARMS V. ELSASSER
caused it to lose a valuable government benefit and that those
defendants were motivated to cancel the business relationship
because of Riley’s expressive conduct. The panel also held
that there was sufficient evidence that the Board members
had the requisite mental state to be liable for damages for the
ongoing constitutional violation.
Because the Riley plaintiffs had carried their burden of
making a prima facie case of retaliation, the burden shifted to
the School defendants. The panel held that taking the
evidence in the light most favorable to the Riley plaintiffs, the
School defendants failed to establish that the School
District’s asserted interests in preventing disruption to their
operations and curricular design because of parental
complaints were so substantial that they outweighed Riley’s
free speech interests as a matter of law.
The panel rejected the School defendants’ argument that
they could not be held liable for unconstitutional retaliation
because their actions were protected government speech.
Even assuming that the selection of a field trip venue was
protected government speech, the pedagogical concerns
underlying the government-speech doctrine did not exist here
because Riley was not speaking for, or on behalf of, the
School District.
The panel held that although there existed a genuine issue
of material fact as to whether the School defendants violated
the Riley plaintiffs’ First Amendment rights, there was no
case that placed the constitutional inquiry here beyond debate
and therefore it was not clearly established that the School
defendants’ reaction to parental complaints and media
attention arising from Riley’s tweets was unconstitutional.
Rather, the School defendants had a heightened interest in
RILEY’S AM. HERITAGE FARMS V. ELSASSER 5
taking action in response to the Riley plaintiffs’ speech to
prevent interruption to the school’s operations. The record
contained undisputed facts that Riley’s tweets gave rise to
actual parent and community complaints and media attention.
The School defendants were therefore entitled to qualified
immunity on the damages claim.
The panel held that the district court erred in dismissing
the claims for injunctive relief which sought to enjoin the
School District’s alleged ongoing policy barring future field
trips to Riley’s Farm. The panel held that the testimony of
the School District’s superintendent was sufficient to create
a genuine issue of material fact as to whether the Riley
plaintiffs continue to suffer from an ongoing constitutional
violation.
COUNSEL
Thomas J. Eastmond (argued) and David A. Robinson,
Holland & Knight LLP, Irvine, California; William J. Becker,
Jr. and Jeremiah D. Graham, Freedom X, Los Angeles,
California; for Plaintiffs-Appellants.
Daniel S. Modafferi (argued) and Golnar J. Fozi, Meyers Fozi
& Dwork, LLP, Carlsbad, California, for Defendants-
Appellees.
6 RILEY’S AM. HERITAGE FARMS V. ELSASSER
ORDER
The opinion filed on March 17, 2022, and published
at 29 F.4th 484 (9th Cir. 2022), is amended by the opinion
filed concurrently with this order.
With these amendments, appellants’ petition for
rehearing, filed March 31, 2022, is DENIED. The petition
for rehearing en banc was circulated to the judges of the
court, and no judge requested a vote for en banc
consideration. The petition for rehearing and petition for
rehearing en banc are DENIED. No further petitions for
rehearing or rehearing en banc will be entertained.
OPINION
IKUTA, Circuit Judge:
This case involves a school district that severed its
longstanding business relationship with a company that
provides field trip venues for public school children. The
school district took this step after the principal shareholder of
the field trip vendor made controversial tweets on his
personal social media account, and some parents complained.
In response to the school district’s adverse action, the field
trip vendor and its shareholder sued the responsible public
school officials under 42 U.S.C. § 1983 for violating their
First Amendment rights. We conclude that there is a genuine
issue of material fact whether the plaintiffs’ First Amendment
rights have been violated, but the school officials are entitled
to qualified immunity as to the plaintiffs’ damages claims
because the right at issue was not clearly established when the
conduct took place. However, the district court erred in
RILEY’S AM. HERITAGE FARMS V. ELSASSER 7
granting summary judgment to the school officials on the
plaintiffs’ claim for injunctive relief, because there is a
genuine issue of material fact whether the school officials are
maintaining an unconstitutional, retaliatory policy barring
future patronage to the vendor.
I
James Patrick Riley is one of the principal shareholders
of Riley’s American Heritage Farms (“Riley’s Farm”).1
Riley’s Farm provides historical reenactments of events such
as the American Revolution, the Civil War, and American
colonial farm life for students on school field trips, and also
hosts events like apple picking. During each year between
2001 and 2017, one or more schools within the Claremont
Unified School District (referred to as CUSD or the “School
District”) booked and attended a field trip to Riley’s Farm.
The School District is governed by a publicly-elected,
five-member Board of Education (the “Board”), and is
managed on a day-to-day basis by its administrators.
As of August 2018, Riley and Riley’s Farm maintained
separate social media accounts, including accounts on
Twitter. Riley used his personal Twitter account to comment
on a range of controversial topics, including President Donald
Trump’s alleged relationship with Stormy Daniels, President
Barack Obama’s production deal with Netflix, Senator
Elizabeth Warren’s heritage, and Riley’s opinions on gender
identity. Some of Riley’s controversial tweets included the
following:
1
We refer to Riley and Riley’s Farm individually where appropriate,
and collectively as the “Riley plaintiffs.”
8 RILEY’S AM. HERITAGE FARMS V. ELSASSER
• When #ElizabethWarren comes on @MSNBC, it’s
therapeutic to issue a very earthy Cherokee war chant
(‘hey-ah-hey-ah..etc) I’m doing it right now. I’m
running around; I’m treating the various desk lamps
like mesquite campfires. You can probably hear it in
Oklahoma. #ScotusPick
• A friend saw an ice sculpture of Kirsten Gillibrand at
a Democratic fundraiser. She actually looked more
human that way - a bit more color in her cheeks.
• So I’m planning a high school reunion and I just
realized we may have been the last generation born
with only two genders.
• #NameThatObamaNetflixShow “Missing ISIS”
Heartwarming story of a former Jihad fighter, now
readjusting to life as a BLM protester.
Riley’s tweets did not appear on any of Riley’s Farm’s
social media accounts or web site. Nor did Riley’s tweets
reference Riley’s Farm or anything related to the School
District or school field trips in general.
In August 2018, a parent of a kindergarten student at
Chaparral Elementary School (one of the schools within the
School District) sent an email to her child’s teacher, Michelle
Wayson, regarding an upcoming field trip at Riley’s Farm.
The parent’s email included screen shots of Riley’s tweets,
and stated “I do NOT feel comfortable with my son
patronizing an establishment whose owner (and/or
family/employees) might be inclined to direct bigoted
opinions towards my child or other vulnerable children in the
group.” Wayson forwarded the parent’s email to the school
RILEY’S AM. HERITAGE FARMS V. ELSASSER 9
principal, Ann O’Connor. Because all four of Chaparral’s
kindergarten classes were scheduled to attend an apple-
picking tour at Riley’s Farm in October 2018, O’Connor
asked Wayson to discuss the parent’s concern with the other
three Chaparral kindergarten teachers and to determine
whether alternative field trip venues would be more
appropriate. Brenda Hamlett, the principal of Sumner
Danbury Elementary School (also in the School District),
reported that multiple parents subsequently asked her to
excuse their children from attending field trips at Riley’s
Farm or choose an alternative field trip venue.
Around the same time, Lee Kane, a parent whose children
had attended schools in CUSD, saw a Facebook post
discussing Riley’s tweets. In September 2018, Kane sent a
copy of the Facebook post to David Nemer, one of the School
District’s board members, and expressed concern about the
School District sending field trips to Riley’s Farm “in light of
a public controversy surrounding tweets” made by Riley.2
The same day, Nemer forwarded Kane’s complaint to
James Elsasser, the superintendent of the School District.
Nemer told Elsasser: “There is concern on Facebook about
some extremely inappropriate and unacceptable tweets by the
owner of an establishment in Oak Glen that has apparently
been visited by CUSD field trips.” In that same email, Nemer
further described Riley’s tweets as “obnoxious” and
“bigoted.” Nemer followed up his email to Elsasser with a
2
Nemer says he also recalled “that other Claremont Unified School
District residents and/or parents, whose names I do not recall, commented
on that post, expressing similar concerns,” though it is not clear whether
they communicated directly with Nemer.
10 RILEY’S AM. HERITAGE FARMS V. ELSASSER
second email stating, “I think many of our stakeholders would
be uncomfortable with these tweets.”3
Two days later, Elsasser and School District
administrators met to discuss parent concerns regarding field
trips to Riley’s Farm. Elsasser asked the administrators to
speak with the teachers at their schools to determine whether
any of them wanted to continue patronizing Riley’s Farm.
O’Connor then emailed the Chaparral kindergarten teachers
and instructed them to “find another alternative” for the field
trip that would not give rise to parental complaints.
The following day, the Redlands Daily Facts (a local
newspaper) published a news article about Riley and his
Twitter posts. The article was titled: “These tweets sparked
social media outcry against owner of Riley’s Farm in Oak
Glen.” The article noted that some community members
were disgusted by Riley’s alleged white supremacist views
espoused in his tweets, and that Riley’s tweets had been
shared over 1,300 times on Twitter.
Because no administrator, teacher, or staff member
expressed a desire to continue going to Riley’s Farm, Julie
Olesniewicz, the Assistant Superintendent for Educational
Services, sent an email to the principals of each of the School
District’s elementary schools “asking that no CUSD school
attend Riley’s Farm field trips” and offering alternative
3
At his deposition in this case, Elsasser later agreed that he
considered some of Riley’s comments to be “racist, sexist, or
homophobic.”
RILEY’S AM. HERITAGE FARMS V. ELSASSER 11
options for the field trips. The parties dispute whether
Olesniewicz’s guidance is still in place. 4
After Olesniewicz sent her email to the elementary school
principals, Nemer sent an email to Elsasser asking, “Is there
any followup information I can convey about the Rileys Farm
issue?” Elsasser responded by email that “[a]ll schools that
were scheduled to go to Riley’s Farm that are operated by
John Riley have been canceled.”
About a week later, on September 24, 2018, counsel for
Riley’s Farm (Thomas Eastmond) sent a letter to Elsasser and
the individual board members, alleging that the School
District had issued a policy forbidding teachers from taking
field trips to Riley’s Farm in retaliation for Riley’s political
posts. Alleging that this policy violated Riley’s Farm’s First
Amendment rights, Eastmond’s letter proposed terms of
settlement. In a letter dated October 2, 2018, the District’s
general counsel denied that the District had issued a policy
forbidding teachers from taking field trips to Riley’s Farm.
4
The Riley plaintiffs’ assertion that Olesniewicz’s guidance is still
in place is based on Elsasser’s testimony at his deposition:
Riley plaintiffs’ counsel: “As far as you’re concerned,
this guidance requesting that no CUSD school attend
Riley’s Farm field trips, it’s still in place; correct?”
Defendants’ counsel: “What did he say?”
Elsasser: “The guidance is still in place. We’ve never
revisited it.”
In opposing the Riley plaintiffs’ motion for partial summary judgment,
defendants’ counsel argued that Elsasser was merely clarifying opposing
counsel’s statement.
12 RILEY’S AM. HERITAGE FARMS V. ELSASSER
She asserted that “[a]fter the District became aware of racist,
sexist and homophobic statements published in social media
by the proprietor of Riley’s Farm, individual schools decided
whether to sponsor field trips to Riley’s Farm during the
2018-2019 school year.” The general counsel also stated that
“nothing in the First Amendment obligates the District to
continue doing business with any individual or organization
that makes public statements which are inimical to the
District’s educational mission.” Therefore, the general
counsel rejected Eastmond’s settlement proposals.5
On October 12, 2018, Riley and Riley’s Farm filed an
action for violation of their civil rights under 42 U.S.C.
§ 1983, alleging that the School District, individual members
of the school board (Steven Llanusa, Hilary LaConte, Beth
Bingham, Nancy Treser Osgood, and David Nemer), and
three school administrators (Elsasser, O’Connor, and
Hamlett) violated the Riley plaintiffs’ First Amendment
rights by prohibiting teachers at Chaparral and Sumner
Danbury Elementary Schools from patronizing Riley’s Farm
for school field trips, in retaliation for Riley’s protected
speech. The complaint sought both damages and injunctive
relief against the defendants.
The district court dismissed the School District from the
suit based on sovereign immunity.6 The Riley plaintiffs
moved for partial summary judgment on their claims against
Elsasser and Nemer for damages. The School defendants
5
The CUSD board members did not take part in the District’s
consideration of, or response to Eastmond’s September 24, 2018 letter.
6
We refer to the remaining defendants individually where
appropriate, and collectively as the “School defendants.”
RILEY’S AM. HERITAGE FARMS V. ELSASSER 13
moved for summary judgment as to all claims. The district
court denied the Riley plaintiffs’ motion for partial summary
judgment and granted the School defendants’ motions for
summary judgment on the ground that they were entitled to
qualified immunity. The Riley plaintiffs subsequently moved
for reconsideration. See Fed. R. Civ. P. 59 and 60. In
denying the motion, the court acknowledged that it erred in
dismissing the claim for injunctive relief on the basis of
qualified immunity, see Pearson v. Callahan, 555 U.S. 223,
242 (2009), but held the error was harmless because there
was no evidence that the School defendants had a policy
prohibiting future field trips to Riley’s Farm.
II
The Riley plaintiffs appeal the district court’s order
granting summary judgment in favor of the School defendants
and its order denying their motion for partial summary
judgment on their claims against Elsasser and Nemer for
damages. We review a district court’s decision on summary
judgment de novo. See L. F. v. Lake Wash. Sch. Dist. #414,
947 F.3d 621, 625 (9th Cir. 2020). We may consider the
district court’s denial of the Riley plaintiffs’ motion for
partial summary judgment because it was “accompanied by
a final order disposing of all issues before the district court”
and “the record has been sufficiently developed to support
meaningful review of the denied motion.” Brodheim v. Cry,
584 F.3d 1262, 1274 (9th Cir. 2009) (quoting
Jones–Hamilton Co. v. Beazer Materials & Services, Inc.,
973 F.2d 688, 694 n.2 (9th Cir. 1992)). In considering the
appeal of a district court’s disposition of cross motions for
summary judgment, we view the evidence for each of the
motions “in the light most favorable to the nonmoving party”
for that motion and determine “whether there are any genuine
14 RILEY’S AM. HERITAGE FARMS V. ELSASSER
issues of material fact and whether the district court correctly
applied the relevant substantive law.” Lake Wash. Sch. Dist.,
947 F.3d at 625 (quoting Wallis v. Princess Cruises, Inc., 306
F.3d 827, 832 (9th Cir. 2002)).
III
We first consider the district court’s grant of summary
judgment in favor of the School defendants on the damages
claim.
A government official is entitled to qualified immunity
from a claim for damages unless the plaintiff raises a genuine
issue of fact showing (1) “a violation of a constitutional
right,” and (2) that the right was “clearly established at the
time of [the] defendant’s alleged misconduct.” Pearson, 555
U.S. at 232 (internal quotation marks omitted). We may
address these prongs in either order. See id. at 236. We
begin with the first prong, and determine whether the Riley
plaintiffs raised a genuine issue of material fact that their
First Amendment rights were violated.7
A
The Riley plaintiffs claim that the School defendants
retaliated against Riley and his company because he engaged
in protected speech on his Twitter account. “‘[A]s a general
matter the First Amendment prohibits government officials
from subjecting an individual to retaliatory actions’ for
7
Because we must consider the merits of the Riley plaintiffs’
constitutional claim in light of their request for injunctive relief, see infra
at Section IV, judicial efficiency counsels us to begin with the first prong
of the qualified immunity framework, see Pearson, 555 U.S. at 242.
RILEY’S AM. HERITAGE FARMS V. ELSASSER 15
engaging in protected speech.” Nieves v. Bartlett, 139 S. Ct.
1715, 1722 (2019) (quoting Hartman v. Moore, 547 U.S. 250,
256 (2006)). “If an official takes adverse action against
someone based on that forbidden motive, and non-retaliatory
grounds are in fact insufficient to provoke the adverse
consequences, the injured person may generally seek relief by
bringing a First Amendment claim.” Id. (internal quotation
marks omitted).
Despite this general rule, the Supreme Court has
recognized that the government may impose “certain
restraints on the speech of its employees” that would be
“unconstitutional if applied to the general public.” City of
San Diego v. Roe, 543 U.S. 77, 80 (2004) (per curiam). As
the Court explained, the government has “interests as an
employer in regulating the speech of its employees that differ
significantly from those it possesses in connection with
regulation of the speech of the citizenry in general.”
Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S.
563, 568 (1968). “[T]he government’s interest in achieving
its goals as effectively and efficiently as possible is elevated
from a relatively subordinate interest when it acts as
sovereign to a significant one when it acts as employer.” Bd.
of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S.
668, 676 (1996) (quoting Waters v. Churchill, 511 U.S. 661,
675 (1994) (plurality opinion)). The government’s power to
impose such restrictions, however, is not unbridled.
Government employees cannot “constitutionally be
compelled to relinquish the First Amendment rights they
would otherwise enjoy as citizens to comment on matters of
public interest.” Pickering, 391 U.S. at 568.
In Pickering, the Court set out a framework to balance the
competing interests between the government employer and
16 RILEY’S AM. HERITAGE FARMS V. ELSASSER
employee. This framework (sometimes referred to as the
Pickering balancing test) “requires a fact-sensitive and
deferential weighing of the government’s legitimate interests”
as employer against the First Amendment rights of the
employee. Umbehr, 518 U.S. at 677. Although the Court
first applied this framework to government employees, it
extended its application to retaliation cases brought by
government contractors because “the similarities between
government employees and government contractors with
respect to this issue are obvious.” Id. at 674; see also O’Hare
Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 721
(1996) (extending the Pickering framework to government
contractors who had reason to believe their business with the
government would continue “based on longstanding
practice”).
We have further extended the Pickering framework to a
range of situations where “the relationship between the
parties is analogous to that between an employer and
employee” and “the rationale for balancing the government’s
interests in efficient performance of public services against
public employees’ speech rights applies.” Clairmont v.
Sound Mental Health, 632 F.3d 1091, 1101 (9th Cir. 2011).
In this vein, we have held that the Pickering framework
applied to a retaliation claim brought by a business vendor
operating under a contract with the government for
weatherization services, Alpha Energy Savers v. Hansen, 381
F.3d 917, 923 (9th Cir. 2004), to a claim by a domestic
violence counselor employed by a private company that
performed counseling services for a municipal court, see
Clairmont, 632 F.3d at 1101–02, and to a claim by a
volunteer probation officer, Hyland v. Wonder, 117 F.3d 405,
411 (9th Cir. 1997), opinion amended on denial of reh’g, 127
F.3d 1135 (9th Cir. 1997). By contrast, we have declined to
RILEY’S AM. HERITAGE FARMS V. ELSASSER 17
apply the Pickering framework to retaliation claims brought
by regulated entities, where the relationship between the
plaintiff and the government was akin to that of a licensee-
licensor and bore no indicia of a typical employee-employer
relationship. See CarePartners, LLC v. Lashway, 545 F.3d
867, 881–82 (9th Cir. 2008) (plaintiffs were owners and
operators of state-licensed boarding homes); Soranno’s
Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314–15 (9th Cir.
1989) (plaintiffs were sellers and distributors of petroleum
operating under city permits).
If a plaintiff’s retaliation claim is subject to the Pickering
framework, a court applies a two-step, burden-shifting
approach. See Alpha Energy Savers, 381 F.3d at 923. First,
a plaintiff must establish a prima facie case of retaliation.
This requires the plaintiff to show that “(1) it engaged in
expressive conduct that addressed a matter of public concern;
(2) the government officials took an adverse action against it;
and (3) its expressive conduct was a substantial or motivating
factor for the adverse action.” Id. This final element of the
prima facie case requires the plaintiff to show causation and
the defendant’s intent. Because § 1983 itself contains no
intent requirement, we look to the underlying constitutional
violation alleged. See Daniels v. Williams, 474 U.S. 327, 330
(1986). Where, as here, a plaintiff alleges First Amendment
retaliation, the plaintiff must show that the government
defendant “acted with a retaliatory motive.” Nieves,
139 S. Ct. at 1722; see also Heffernan v. City of Paterson,
578 U.S. 266, 272 (2016) (“To win [a retaliation claim], the
employee must prove an improper employer motive.”). Put
another way, a plaintiff must establish that the defendant was
motivated (or intended) to take the adverse action because of
the plaintiff’s expressive conduct. See Nieves, 139 S. Ct. at
1722.
18 RILEY’S AM. HERITAGE FARMS V. ELSASSER
If the plaintiff carries its burden of showing these three
elements, the burden shifts to the government. Alpha Energy
Savers, 381 F.3d at 923. The government can avoid liability
in one of two ways. First, the government can demonstrate
that its “legitimate administrative interests in promoting
efficient service-delivery and avoiding workplace disruption”
outweigh the plaintiff’s First Amendment interests. Id.(citing Pickering, 391 U.S. at 568). Second, the government
can show that it would have taken the same actions in the
absence of the plaintiff’s expressive conduct. Id. (citing Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977)). A plaintiff cannot establish unconstitutional
retaliation “if the same decision would have been reached”
absent the protected conduct, even if “protected conduct
played a part, substantial or otherwise,” in motivating the
government’s action. Mt. Healthy, 429 U.S. at 285 (internal
quotations omitted).
B
We now turn to the question whether the Riley plaintiffs
raised a genuine issue of material fact that their First
Amendment rights were violated, and therefore the district
court erred in granting summary judgment to the School
defendants. We consider the facts in the light most favorable
to the Riley plaintiffs. See Lake Wash. Sch. Dist., 947 F.3d
at 625.
1
To answer this question, we must first determine whether
the Pickering framework applies to the Riley plaintiffs’ claim
RILEY’S AM. HERITAGE FARMS V. ELSASSER 19
of retaliation.8 The Riley plaintiffs assert that the framework
does not apply because their relationship to the School
District was more akin to that of a private citizen than a
government contractor. We disagree.
First, courts have frequently concluded that when a
governmental entity outsources government services for
performance by a private company, the relationship between
the parties is analogous to that between the government and
a government contractor. See Clairmont, 632 F.3d at1101–02; see also Umbehr, 518 U.S. at 679; O’Hare, 518
U.S. at 714–15. As in Clairmont, where a municipal court
relied on a private company to provide counseling services to
probationers, see 632 F.3d at 1101–02, the School District
here relied on Riley’s Farm to provide educational services
for public school students. Therefore, even though the record
does not demonstrate that the Riley plaintiffs were
categorized under California law as an “independent
contractor,” or that they had a written contract for services
with the School District, the relationship between the Riley
plaintiffs and the School defendants is analogous to those we
have recognized between the government and a government
contractor. See, e.g., id.; Alpha Energy Savers, 381 F.3d at
923.
Second, the rationale for balancing the government’s
interest in efficient performance of public service against the
8
We reject the Riley plaintiffs’ argument that, because the School
defendants did not file a protective cross appeal on the district court’s
holding, we are bound by the district court’s finding that the Pickering
framework does not apply to their First Amendment claim. An appellee
may raise arguments that were rejected below without filing a cross-
appeal. See Rivero v. City and County of San Francisco, 316 F.3d 857,
862 (9th Cir. 2002).
20 RILEY’S AM. HERITAGE FARMS V. ELSASSER
contractor’s free speech rights is applicable here. See
Clairmont, 632 F.3d at 1101–02. Because the Riley plaintiffs
hosted field trips for students, the School District had an
interest in ensuring that the services performed by Riley’s
Farm “were properly provided.” Id. at 1102. Those interests
included ensuring the students’ safety and maintaining the
School District’s intended curricular design for the trips. We
conclude that the character of the services provided by the
Riley plaintiffs to the School District implicate the type of
heightened government interests that the Court and our circuit
have determined justify the application of the Pickering
framework to a retaliation claim. See Umbehr, 518 U.S. at
674; Clairmont, 632 F.3d at 1101–02. The district court erred
in holding to the contrary.
Having determined that the Pickering framework applies
to the Riley plaintiffs’ First Amendment claim, we now apply
the two-step, burden-shifting approach for government
contractors alleging retaliation. See Umbehr, 518 U.S. at
673; Alpha Energy Savers, 381 F.3d at 923.
We first consider whether the Riley plaintiffs have
established a prima facie case of retaliation that can survive
summary judgment. The first element of the prima facie case
requires that the contractor engaged in expressive conduct
that addressed a matter of public concern, a category of
conduct that “lies at the heart of the First Amendment.” Lane
v. Franks, 573 U.S. 228, 235 (2014). There is no genuine
issue of disputed fact that Riley engaged in such expressive
conduct. Riley’s tweets discussed matters that fall within the
core of protected First Amendment activity including politics,
religion, and issues of social relations. See Janus v. Am.
Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct.
2448, 2476 (2018).
RILEY’S AM. HERITAGE FARMS V. ELSASSER 21
Nor is there a genuine issue of disputed fact that some of
the School defendants took an adverse action against Riley’s
Farm. A plaintiff establishes the adverse action element of
the prima facie case by demonstrating that the government
action threatened or caused pecuniary harm, or deprived a
plaintiff of some valuable government benefit. Umbehr, 518
U.S. at 674. This element is satisfied when the government
cancels a for-profit contract with a contractor. See Rivero,
316 F.3d at 864. The cancellation of the field trips and
prohibition of future field trips caused Riley’s Farm to lose a
valuable government benefit in the form of an expected
pecuniary gain and an established business relationship with
the School District. See id. at 865.
Finally, there is no genuine issue of disputed fact that
some of the School defendants were motivated to cancel the
longstanding business relationship with the Riley plaintiffs
because of Riley’s expressive conduct. The field trips and the
longstanding business relationship were cancelled only after
Nemer and CUSD parents raised concerns about the content
of Riley’s tweets to Elsasser, Hamlett, and O’Connor. In his
deposition, Elsasser admitted that the decision was made to
appease parents based on their concern about the content of
Riley’s speech. When coupled with the temporal relationship
between the expressive conduct and the defendants’
collective opposition to and adverse action against the Riley
plaintiffs, Elsasser’s admission is sufficient to raise a prima
facie showing of retaliatory intent. See Alpha Energy Savers,
381 F.3d at 929. And Nemer and Elsasser’s description of
Riley’s speech (“inappropriate,” “unacceptable, “obnoxious”,
“bigoted,” “homophobic”, and “racist”) further demonstrates
the School defendants’ intent to punish the Riley plaintiffs
because of Riley’s protected conduct. See id. Thus, the Riley
22 RILEY’S AM. HERITAGE FARMS V. ELSASSER
plaintiffs have made a prima facie case of First Amendment
retaliation against Elsasser, Hamlett, O’Connor, and Nemer.
The School defendants argue that the Riley plaintiffs
cannot satisfy the third element of the prima facie case
because they have not shown that the defendants intended to
chill Riley’s speech. We disagree. A plaintiff need only
show that the government intended “to retaliate against,
obstruct, or chill the plaintiff’s First Amendment rights.” Az.
Students’ Ass’n v. Az. Bd. of Regents, 824 F.3d 858, 867 (9th
Cir. 2016) (emphasis added). Such reprisal could include
terminating the government’s relationship with the plaintiff
entirely, rather than merely chilling the plaintiff’s speech in
the future. See, e.g., Alpha Energy Savers, 381 F.3d at 922(County’s retaliatory acts included “‘fixing it’ so that [the
plaintiff] would not receive further work from the County”);
Clairmont, 632 F.3d at 1106 (evidence supported a finding
that the municipal court pressured its contractor to fire the
plaintiff because of his speech); see also O’Brien v. Welty,
818 F.3d 920, 932 (9th Cir. 2016); Eng v. Cooley, 552 F.3d
1062, 1074 (9th Cir. 2009) (holding that an employer’s
retaliation against an employee by “systematic investigations,
prosecution, suspensions, and demotion” after the employee’s
protected conduct demonstrated that the conduct was a
“substantial or motivating factor in the adverse employment
action”) (internal quotation marks omitted).
The prima facie case against Board members Llanusa,
LaConte, Bingham, and Treser Osgood requires a different
analysis. The Riley plaintiffs do not allege that these Board
members took part in the cancellation of the field trips or the
School District’s severance of its relationship with the Riley
plaintiffs. Nevertheless, because the Board members govern
the School District, and have supervisory authority to stop the
RILEY’S AM. HERITAGE FARMS V. ELSASSER 23
adverse actions against the Riley plaintiffs, they may incur
liability due to their knowledge and acquiescence in a
constitutional violation. See OSU Student All. v. Ray, 699
F.3d 1053, 1075 (9th Cir. 2012). In OSU Student Alliance,
the publisher of a conservative school newspaper sued
university officials under § 1983 on the ground that the
school retaliated against it by limiting the distribution of its
newspaper on campus, pursuant to an unwritten policy. See
id. at 1058–60. In addition to suing the director of facilities
services, who had actually applied the policy to the
newspaper, the plaintiff also sued the president and vice
president of the university who had not been directly involved
in enforcement of the policy, but had been informed about the
application of the policy and done nothing to stop it. See id.
at 1070–71. We held that “allegations of facts that
demonstrate an immediate supervisor knew about the
subordinate violating another’s federal constitutional right to
free speech, and acquiescence in that violation, suffice to
state free speech violations under the First and Fourteenth
Amendments.” Id. at 1075. Therefore, the president and vice
president of the university could be held liable under § 1983
for the continued enforcement of the retaliatory policy. Id.
By contrast, the vice provost for student affairs, who merely
received the “first email message complaining” about the
policy, id. at 1078, and neither knew nor acquiesced in the
decision to continue applying the policy to the paper, could
not be held liable, see id. at 1078–79.
Here, taking the evidence in the light most favorable to
the Riley plaintiffs, the Board members were made aware of
the ongoing violation through Eastmond’s demand letter, and
24 RILEY’S AM. HERITAGE FARMS V. ELSASSER
then failed to remedy the policy. See id.9 Under OSU
Student Alliance, this is sufficient to create a prima facie case
that the Board members had the requisite mental state to be
held liable for damages resulting from the ongoing
constitutional violation (i.e., the ongoing policy prohibiting
future trips to Riley’s Farm). See id. at 1075.
2
Because the Riley plaintiffs have carried their burden of
making a prima facie case of retaliation, the burden shifts to
the School defendants to demonstrate that they took the
adverse action because they had “legitimate countervailing
government interests [that were] sufficiently strong” under
the Pickering balancing test to “outweigh the free speech
interests at stake.” Umbehr, 518 U.S. at 675, 685.10
9
We reject the Riley plaintiffs’ argument that they need not establish
the wrongdoer’s retaliatory intent. The Court has repeatedly held that
liability for retaliatory conduct requires proof of the defendant’s retaliatory
intent. See Nieves, 139 S. Ct. at 1722; Heffernan, 578 U.S. at 272.
O’Brien, 818 F.3d at 932, cited by the Riley plaintiffs, required a plaintiff
to prove that a defendant intended to (or was motivated to) take adverse
action because of a plaintiff’s protected conduct. Blair v. Bethel School
Dist., also cited by the Riley plaintiffs, is inapposite, because that case
involved an elected official who was not shielded by the First Amendment
from the ordinary “give-and-take of the political process.” 608 F.3d 540,
543 (9th Cir. 2010).
10
The question whether the government has met its burden of
justifying its adverse action under Pickering is a question of law, but may
raise “underlying factual disputes that need to be resolved by a
fact-finder.” Moser v. Las Vegas Metro. Police Dep’t, 984 F.3d 900, 911
(9th Cir. 2021). A fact-finder’s role in the Pickering analysis is limited to
resolving those genuine disputes of historical fact necessary for the court
to make its legal determination under Pickering. See id. Thus, a district
court has discretion in “fashioning the most efficient way to resolve these
RILEY’S AM. HERITAGE FARMS V. ELSASSER 25
The government may demonstrate such legitimate
countervailing interests by providing evidence that a
contractor’s expressive conduct disrupted the government
workplace through, for example, interfering with the
government services or operations provided by the contractor.
See Alpha Energy Savers, 381 F.3d at 923. When asserting
such an interest, the government “must demonstrate actual,
material and substantial disruption, or reasonable predictions
of disruption in the workplace.” Robinson v. York, 566 F.3d
817, 824 (9th Cir. 2009) (internal quotation marks omitted).
Evidence that actual disruption has already occurred in the
workplace “will weigh more heavily against free speech.”
Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,
749 n.2 (9th Cir. 2001). But “[t]he employer need not
establish that the employee’s conduct actually disrupted the
workplace—‘reasonable predictions of disruption’ are
sufficient.” Nichols v. Dancer, 657 F.3d 929, 933 (9th Cir.
2011) (citation omitted). The government is more likely to
meet its burden when an employee’s disruptive conduct takes
place in the workplace, compared to when the same conduct
occurs “during the employee’s free time away from the
office.” Clairmont, 632 F.3d at 1107 (citing Connick v.
Myers, 461 U.S. 138, 153 (1983)); see also Melzer v. Bd. of
Educ. of City Sch. Dist. of City of New York, 336 F.3d 185,
197 (2d Cir. 2003). While it “may rely on the possibility of
future disruption,” the government must support its claim that
it reasonably predicted disruption “by some evidence, not
rank speculation or bald allegation.” Nichols, 657 F.3d at
934.
factual disputes” prior to its Pickering ruling (e.g., a special jury verdict
form). Id.26 RILEY’S AM. HERITAGE FARMS V. ELSASSER
Where public school officials assert that their interest in
taking adverse action against a plaintiff was to avoid
disruption to the school’s operations and curricular design,
courts consider whether students and parents have expressed
concern that the plaintiff’s conduct has disrupted the school’s
normal operations, or has eroded the public trust between the
school and members of its community. See Munroe v. Cent.
Bucks Sch. Dist., 805 F.3d 454, 475–76 (3d Cir. 2015).
Because schools act in loco parentis for students, see
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995),
school officials can reasonably predict that parents and
students will fear the influence of controversial conduct on
the learning environment, see Melzer, 336 F.3d at 199. The
disruption “created by parents can be fairly characterized as
internal disruption to the operation of the school, a factor
which may be accounted for in the balancing test and which
may outweigh a public employee’s rights.” Id.The government’s evidence of disruption may be deemed
substantial if parents are so concerned with controversial
conduct that they choose (or threaten) to “remove their
children from the school, thereby interrupting the children’s
education, impairing the school’s reputation, and impairing
educationally desirable interdependency and cooperation
among parents, teachers, and administrators.” Id. In this
context, the Second Circuit held there was substantial
disruption justifying the government’s adverse action against
a public school teacher who was active in a pedophile
association, where nearly 60 parents expressed concern that
the teacher’s controversial beliefs implicated the safety and
well-being of the young students, and hundreds of students
staged an assembly to share their views on the controversy.
See id. at 191, 198–99. In particular, the court credited the
school’s claim that substantial disruption to its operations and
RILEY’S AM. HERITAGE FARMS V. ELSASSER 27
its relationship with the parents arose from the parents’
threats to remove children from school. See id. at 199.
Despite explaining that the teacher’s First Amendment
interest in advocating for controversial political change was
of the “highest value,” id. at 198, the court held that the
school’s evidence of disruption justified its actions under the
Pickering balancing test, see id. at 198–99. Likewise, the
Third Circuit held that where a school received complaints
from hundreds of parents about a teacher’s blog that criticized
her students, the school’s assessment that the teacher’s
expression of disgust towards her students would disrupt her
teaching duties and erode the trust between herself and her
students (and their parents) counted as substantial disruption
to justify terminating her. See Munroe, 805 F.3d at 473–74;
see also Craig v. Rich Twp. High Sch. Dist. 227, 736 F.3d
1110, 1119–20 (7th Cir. 2013) (holding that the government
had a legitimate interest in preventing disruption arising from
parent complaints about a school guidance counselor who
wrote a hyper-sexualized advice book for women and
dedicated the book to his students.).
Applying this framework here, and taking the evidence in
the light most favorable to the Riley plaintiffs, the School
defendants have failed to establish that the School District’s
asserted interests in preventing disruption to their operations
and curricular design because of parental complaints were so
substantial that they outweighed Riley’s free speech interests
as a matter of law.
First, we give less weight to the government’s concerns
about the disruptive impact of speech outside the workplace
context. See Rankin v. McPherson, 483 U.S. 378, 388–89
(1987); Clairmont, 632 F.3d at 1107. Riley’s controversial
tweets were made on his personal Twitter account, and did
28 RILEY’S AM. HERITAGE FARMS V. ELSASSER
not mention or reference the School District or field trips to
Riley’s Farm in general. There are no allegations that Riley
made (or planned to make) any controversial statements
during a school field trip; indeed, there are no allegations that
he interacted at all with the students during the field trips.
Although Riley’s tweets became associated with the School
District due to some local media attention and posts on
Facebook, taking the evidence in the light most favorable to
the Riley plaintiffs, the attenuated relationship between
Riley’s controversial speech and the field trips themselves
weighs against the School District’s asserted interest in
preventing disruption to its operations and curricular design.
Nor has the school demonstrated any actual disruption to
its operations arising from Riley’s speech. See Keyser, 265
F.3d at 749. The School defendants have provided the
substance of two complaints from parents, only one of which
involved a student currently enrolled in the School District.11
While Hamlett asserted that multiple parents asked the
Sumner Danbury principal to either excuse their children
from the field trips or choose an alternative venue, there is no
evidence regarding the number of parents or the nature of
those complaints. This is far afield from cases where the
government gave weight to hundreds of parent and student
complaints. See Melzer, 336 F.3d at 190–91 (record showed
that nearly 60 parents and hundreds of students complained
about the teacher’s proximity to students); Munroe, 805 F.3d
at 473–74 (school received complaints about teacher from
hundreds of parents).
11
Moreover, there is a dispute whether that child was even scheduled
to attend a field trip to Riley’s Farm, or whether the parent had confused
Riley’s Farm with another, unrelated apple-picking venue with a similar
name.
RILEY’S AM. HERITAGE FARMS V. ELSASSER 29
Likewise, the School defendants have failed to provide
evidence of likely future disruption that would entitle them to
summary judgment as a matter of law. See Nichols, 657 F.3d
at 935. Unlike the evidence in Meltzer, where hundreds of
parents threatened to remove their children from school, the
record here shows only a handful of parent requests that a
child be excused from a single field trip. Such requests do
not evidence the substantial disruption that may arise from a
large number of parents threatening to remove their children
from school.
Although evidence that the media or broader community
has taken an interest in the plaintiff’s conduct may also weigh
in favor of the government’s assertion of disruption, see
Moser, 984 F.3d at 909–10, the sparse media attention to
Riley’s tweets demonstrated in the record does not weigh in
favor of the School defendants. The Redlands Daily Facts’s
article about Riley’s tweets noted that there was a “social
media outcry” against Riley’s Farm, and reported that Riley’s
tweets had been shared some 1,300 times. But there is no
evidence in the record that Riley’s tweets were covered by
any other newspapers or media, and no indication that the
tweets received nationwide attention. Compare Munroe,
805 F.3d at 462–63 (noting that the teacher’s controversial
blog post was reported by the Huffington Post, and the
teacher “appeared on ABC, CBS, NBC, CNN, Fox News, and
other television stations,” and was interviewed by “several
print news sources, including the Associated Press, Reuters,
Time Magazine, and the Philadelphia Inquirer”). Although
the School defendants presented evidence that a number of
district residents or parents commented on the Facebook post
discussing Riley’s tweets, this evidence provides little
support, as the School defendants did not specify the nature
or number of those comments. The attenuated relationship
30 RILEY’S AM. HERITAGE FARMS V. ELSASSER
between the content of the tweets and Riley’s lack of
involvement on the curricular aspects of the field trip
diminish the impact of the media coverage on the School
District’s asserted interests.
We balance these minor occurrences against Riley’s
interest in engaging in controversial, unique political
discourse on his personal Twitter account. Those tweets are
“entitled to special protection” given their contribution to the
public political discourse. Snyder v. Phelps, 562 U.S. 443,
452 (2011).
In light of these considerations, the School defendants fall
short of justifying their adverse actions against the Riley
plaintiffs as a matter of law at summary judgment. While
there is a genuine issue of historical fact about the degree of
controversy arising from the speech (i.e., the extent of actual
and predicted disruption in the learning environment), the
record as currently developed, viewed in the light most
favorable to the Riley plaintiffs, see Lake Wash. Sch. Dist.,
947 F.3d at 625, does not justify the School defendants’
adverse action.
On the other hand, these same considerations lead us to
reject the Riley plaintiffs’ argument that they are entitled to
partial summary judgment on their claims against Elsasser
and Nemer for damages. Taking the facts in the light most
favorable to those defendants, see id., there remains a genuine
issue of material fact as to the amount of disruption to the
School District arising from Riley’s tweets.
Finally, we consider whether the School defendants can
avoid liability by demonstrating that they would have taken
the same adverse actions against the Riley plaintiffs absent
RILEY’S AM. HERITAGE FARMS V. ELSASSER 31
Riley’s tweets. See Mt. Healthy, 429 U.S. at 287. The
School defendants have not done so. To the contrary, they
have admitted that they took the action directly in response to
parent concerns about Riley’s speech. There is no genuine
issue of disputed fact that the School defendants would not
have cancelled the relationship with the Riley plaintiffs
absent Riley’s speech.
In light of this conclusion, we hold that the Riley
plaintiffs have established that there is a genuine issue of
material fact regarding whether the School defendants
violated the Riley plaintiffs’ First Amendment rights.
3
Independent from their argument that they were entitled
to take adverse action against the Riley plaintiffs to avoid
disruption pursuant to the Pickering balancing test, the
School defendants raise the separate argument that they
cannot be held liable for unconstitutional retaliation because
their actions were protected government speech. We
disagree. The government has broader authority to regulate
its own speech, or speech that a reasonable observer may
view as the government’s own, see, e.g., Downs v. Los
Angeles Unified Sch. Dist., 228 F.3d 1003, 1013–14 (9th Cir.
2000); Johnson v. Poway Unified Sch. Dist., 658 F.3d 954,
969–70 (9th Cir. 2011), but not speech that cannot be
reasonably viewed as coming from the government, see
Downs, 228 F.3d at 1013, 1017.
To determine whether speech can be reasonably viewed
as coming from the government, we look to non-exhaustive
factors, including (i) who was directly responsible for the
speech, (ii) who had access to the forum in which the speech
32 RILEY’S AM. HERITAGE FARMS V. ELSASSER
occurred, (iii) who maintained editorial control over that
forum, and (iv) the purpose of the forum. See Downs, 228
F.3d at 1011–12. Applying this framework, we have held
that a school district did not violate a teacher’s First
Amendment right by preventing the teacher from posting
alternative views on homosexuality on a school-sponsored
and school-maintained bulletin board. See id. at 1017. Nor
did a school district violate the First Amendment by requiring
a teacher to remove banners from his classroom that
advocated the teacher’s religion. See Johnson, 658 F.3d at
970; see also Planned Parenthood v. Clark County School
District, 941 F.2d 817, 819, 829 (9th Cir. 1991) (en banc)
(holding that a school district could decline to accept
advertisements regarding abortion services in school
publications because the school officials reasonably believed
the advertisements may “put the school’s imprimatur on one
side of a controversial issue”).
These principles are not implicated here. Although the
information and speech Riley’s Farm presents to school
children may be deemed to be part of the school’s curriculum
and thus School District speech, the School defendants do not
assert that the allegedly offensive tweets were made by or at
Riley’s Farm. All of the speech deemed offensive by the
School District was made by Riley on his personal Twitter
account. His tweets did not mention the School District or
the field trips. There is no evidence here that a reasonable
observer would view Riley’s speech as the School District’s
speech. See Planned Parenthood, 941 F.2d at 829. Thus,
even assuming the School District is correct that the selection
of a field trip venue is protected government speech, the
pedagogical concerns underlying the government-speech
doctrine do not exist here because Riley was not speaking for,
RILEY’S AM. HERITAGE FARMS V. ELSASSER 33
or on behalf of, the School District. See Downs, 228 F.3d at1011–12.
C
Because there is a genuine issue of material fact regarding
whether the School defendants violated the Riley plaintiffs’
First Amendment rights (the first prong of the qualified
immunity inquiry), we now turn to the second prong, whether
the defendants violated a constitutional right that was clearly
established at the time of the alleged violation. See Brosseau
v. Haugen, 543 U.S. 194, 198 (2004). A government official
“violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently
clear that every reasonable official would have understood
that what he is doing violates that right.” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011) (cleaned up). The “existing
precedent must have placed the statutory or constitutional
question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148,
1152 (2018) (internal quotation marks omitted).
The right to be free from First Amendment retaliation
cannot be framed as “the general right to be free from
retaliation for one’s speech.” Reichle v. Howards, 566 U.S.
658, 665 (2012). Rather, the right must be defined at a more
specific level tied to the factual and legal context of a given
case. See id. The question whether a public employee or
contractor “enjoyed a clearly established right to speak”
depends on “whether the outcome of the Pickering balance so
clearly favored [the plaintiff] that it would have been patently
unreasonable for the [government] to conclude that the First
Amendment did not protect his speech.” Brewster v. Bd. of
Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 980 (9th
Cir. 1998). Not surprisingly, there will rarely be a case that
34 RILEY’S AM. HERITAGE FARMS V. ELSASSER
clearly establishes that the plaintiff is entitled to prevail under
the fact-sensitive, context-specific balancing required by
Pickering. See id. at 979–80.
Applying these principles here, and taking the facts in the
light most favorable to the Riley plaintiffs, we ask whether in
September 2018, when these events occurred, it was clearly
established that a school district could not cease patronizing
a company providing historical reenactments and other events
for students because the company’s principal shareholder had
posted controversial tweets that led to parental complaints.12
We conclude that there was no case that placed the
constitutional inquiry here “beyond debate,” Kisela, 138
S. Ct. at 1152, and therefore it was not clearly established that
the School District’s reaction to parental complaints and
media attention arising from Riley’s tweets was
unconstitutional. Rather, the School defendants had a
heightened interest, and thus more leeway, in taking action in
response to the Riley plaintiffs’ speech to prevent interruption
to the school’s operations. See Pickering, 391 U.S. at570–73. Although it is clearly established that a government
employer’s pretextual fear of a potential disruption, see
12
We reject the Riley plaintiffs’ framing of this question, as whether
it is clearly established that “[w]hen a person has a pre-existing
commercial relationship with a public agency,” the “business patronage
pursuant to that relationship [is] a ‘valuable government benefit’ which the
agency may not take away based on the person’s First Amendment []
protected speech.” This framing is at too high a level of generality, and
is not adequately adjusted to account for the School District’s interests in
avoiding disruption to its operations under the Pickering test. Although
we agree that the facts of a prior case do not have to be identical to
establish clearly established law, see al-Kidd, 563 U.S. at 741, “the clearly
established law must be particularized to the facts of the case” at hand,
White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal quotation marks
omitted).
RILEY’S AM. HERITAGE FARMS V. ELSASSER 35
Robinson, 566 F.3d at 826, or a claim of imagined workplace
disruption for which “there is no support,” Clairmont, 632
F.3d at 1110, cannot outweigh the First Amendment interests
of a government employee or contractor, here the record
contains undisputed facts that Riley’s tweets gave rise to
actual parent and community complaints and media attention.
Because the right at issue was not clearly established, the
School defendants are entitled to qualified immunity on the
Riley plaintiffs’ damages claims. We therefore affirm the
district court’s grant of summary judgment to all School
defendants on the Riley plaintiffs’ claim for damages.13
IV
We next turn to the Riley plaintiffs’ claim for injunctive
relief against the School defendants, which seeks to enjoin the
School District’s alleged ongoing policy barring future field
trips to Riley’s Farm. The Riley plaintiffs assert that the
district court erred in granting summary judgment to the
School defendants on this claim because there is a genuine
issue of fact whether the School District maintains such
policy.
“Although sovereign immunity bars money damages and
other retrospective relief against a state or instrumentality of
a state, it does not bar claims seeking prospective injunctive
relief against state officials to remedy a state’s ongoing
violation of federal law.” Az. Students’ Ass’n, 824 F.3d at
13
We likewise affirm the dismissal of the Riley plaintiffs’ request for
punitive damages, because a court may not award punitive damages where
compensatory damages cannot be awarded. See Deland v. Old Republic
Life Ins. Co., 758 F.2d 1331, 1339 n.4 (9th Cir. 1985).
36 RILEY’S AM. HERITAGE FARMS V. ELSASSER
865 (citing Ex Parte Young, 209 U.S. 123, 149–56 (1908)).
To bring a claim for prospective injunctive relief, a plaintiff
“must identify a practice, policy, or procedure that animates
the constitutional violation at issue.” Id. (citing Hafer v.
Melo, 502 U.S. 21, 25 (1991)); see also Monell v. N.Y.C.
Dep’t of Soc. Servs., 436 U.S. 658, 690 & n. 55 (1978).
To obtain injunctive relief for a violation of § 1983, a
plaintiff must establish: “(1) actual success on the merits;
(2) that it has suffered an irreparable injury; (3) that remedies
available at law are inadequate; (4) that the balance of
hardships justify a remedy in equity; and (5) that the public
interest would not be disserved by a permanent injunction.”
Edmo v. Corizon, Inc., 935 F.3d 757, 784 (9th Cir. 2019),
cert. denied, 141 S. Ct. 610 (2020) (internal quotation marks
omitted).
“[T]he deprivation of constitutional rights
‘unquestionably constitutes irreparable injury.’” Melendres
v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod
v. Burns, 427 U.S. 347, 373 (1976)). Thus, evidence of an
ongoing constitutional violation (i.e., a policy or practice)
satisfies the second element of the injunctive relief test. See
id. Finally, “it is always in the public interest to prevent the
violation of a party’s constitutional rights.” Id. (quoting
Sammartano v. First Judicial District Court, 303 F.3d 959,
974 (9th Cir. 2002)).
Applying this framework here, we conclude that the
district court erred in dismissing the Riley plaintiffs’ claim
for injunctive relief. Because we have already concluded that
there is genuine issue of material fact regarding whether the
Riley plaintiffs have established a First Amendment
violation, see supra at Section III.B.2, we must determine
RILEY’S AM. HERITAGE FARMS V. ELSASSER 37
whether there is a genuine issue of material fact that the
violation is ongoing, see Az. Students’ Ass’n, 824 F.3d at 865.
The district court held that there was no ongoing
constitutional violation as a matter of law because the School
District had no “standing, future-looking prohibition” against
future field trips to Riley’s Farm. We disagree. Elsasser’s
testimony that the “guidance [requesting that no CUSD
school attend Riley’s Farm field trips] is still in place,” is
sufficient to create a genuine issue of material fact as
to whether the Riley plaintiffs continue to suffer from
an ongoing constitutional violation. The district court’s
statement that “[i]t would be improper . . . to reverse a policy
which does not exist” failed to view the plain text of
Elsasser’s testimony in the light most favorable to the Riley
plaintiffs.14 Although the School defendants dispute the
existence of an ongoing unconstitutional policy, we have held
that equity favors injunctive relief under such circumstances
because a defendant “cannot be harmed by an order enjoining
an action” it purportedly will not take. Melendres, 695 F.3d
at 1002. And although the School defendants argue that “no
District school has expressed a desire to attend Riley’s Farm,”
and therefore “no further consideration of this issue has been
14
Moreover, the district court erred to the extent it held that the Riley
plaintiffs did not have standing to seek injunctive relief because they were
not in immediate danger of sustaining a future injury. See City of Los
Angeles v. Lyons, 461 U.S. 95, 102 (1983). Because there is a genuine
dispute of material fact regarding whether the School defendants maintain
an ongoing policy in violation of the Riley plaintiffs’ First Amendment
rights, and the “deprivation of constitutional rights unquestionably
constitutes irreparable injury,” Melendres, 695 F.3d at 1002 (internal
quotation marks omitted), the Riley plaintiffs have standing to seek
injunctive relief.
38 RILEY’S AM. HERITAGE FARMS V. ELSASSER
necessary,” that assertion does not contradict Elsasser’s
statement that the guidance remains in place.
The School defendants’ argument that injunctive relief is
not appropriate because parents have considerable influence
on the School’s choice of field trips, and therefore a different
group of parents could decide to revisit the decision to
continue patronizing Riley’s Farm, does not alter our
conclusion. If there is a policy preventing the School District
from future patronage to Riley’s Farm, the influence of
parents on the decision-making process is beside the point.
The policy would still be in place, and the Riley plaintiffs
would continue to be subjected to it. Likewise, the fact that
Elsasser testified that the School District is not currently
booking field trips because of COVID-related concerns does
not alter the conclusion that, once field trips resume, the
School District would bar patronage to the Farm pursuant to
the policy. Therefore, the district court erred in granting
summary judgment in favor of the School defendants on the
Riley plaintiffs’ injunctive relief claim.
V
Finally, we address the School defendants’ argument that
the individual Board members are improper defendants in this
suit because they played no part in the alleged constitutional
violation, and therefore cannot be held liable as supervisors.
Because the individual Board defendants are entitled to
qualified immunity from the damages claim, see supra at
Section III.C, we need only address whether those individuals
are properly named defendants on the claim for injunctive
relief.
RILEY’S AM. HERITAGE FARMS V. ELSASSER 39
A plaintiff seeking injunctive relief in a § 1983 action
against the government “is not required to allege a named
official’s personal involvement in the acts or omissions
constituting the alleged constitutional violation.” Colwell v.
Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014) (citation
omitted). Instead, “a plaintiff need only identify the law or
policy challenged as a constitutional violation and name the
official within the entity who can appropriately respond to
injunctive relief.” Hartmann v. California Dep’t of Corr. &
Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013) (citing L.A.
Cnty. v. Humphries, 131 S. Ct. 447, 452, 454 (2010)). Thus,
a plaintiff seeking injunctive relief for an ongoing First
Amendment violation (e.g., a retaliatory policy) may sue
individual board members of a public school system in their
official capacities to correct the violation. See Az. Students’
Ass’n, 824 F.3d at 865; Freedom From Religion Found., Inc.
v. Chino Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d
1132, 1138 (9th Cir. 2018) (noting that California school
boards are the governing body for the school district).
The Riley plaintiffs have done just that. They have sued
the individual Board defendants in their official capacity,
requesting prospective injunctive relief to remedy the School
District’s ongoing retaliatory policy. The parties agree that
the Board members govern the School District. This is
consistent with the authority granted to the Board under the
California Education Code, which vests it with the authority
to “prescribe and enforce rules not inconsistent with law.”
Cal. Educ. Code § 35010(a), (b); see also Freedom From
Religion Found., Inc., 896 F.3d at 1138. Should the Riley
plaintiffs prevail on their First Amendment claim for
injunctive relief, the Board defendants are proper individuals
to remedy a policy that continues to animate the School
40 RILEY’S AM. HERITAGE FARMS V. ELSASSER
District’s ongoing constitutional violation. See Az. Students’
Ass’n, 824 F.3d at 865.15
In sum, we affirm the district court’s grant of qualified
immunity on the Riley plaintiffs’ claim for damages, and
reverse the court’s grant of summary judgment on the claim
for injunctive relief.16
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED.17
15
Defendant Bingham is no longer a CUSD Board member, and
therefore has no legal authority to remedy any ongoing violation of law.
We therefore order her dismissed from the claim for injunctive relief. The
record does not indicate whether any other defendants have likewise
ceased serving in an official capacity for the School District, and therefore
should also be dismissed from the claim for injunctive relief. The district
court may make this determination on remand.
16
The Riley plaintiffs also appeal the district court’s denial of their
motion for reconsideration. We dismiss their appeal as moot with respect
to the district court’s grant of summary judgment on their injunctive relief
claim. See Ortiz v. City of Imperial, 884 F.2d 1312, 1314 n.1 (9th Cir.
1989). We affirm the district court’s denial of the Riley plaintiffs’ motion
to reconsider with respect to the district court’s grant of summary
judgment on the Riley plaintiffs’ damages claims. See id.17
Each party shall bear its own costs on appeal.