Metropolitan News-Enterprise


Friday, March 19, 2004


Page 1


Ninth Circuit Rejects Lawsuit by Clerics Over Presidio Protest

Panel Agrees Rights Were Violated but Says Officials Are Immune


By KENNETH OFGANG, Staff Writer/Appellate Courts


Federal officials violated the rights of clergy members who were arrested for demonstrating without a permit at the former Presidio of San Francisco, but have qualified immunity from suit, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed an order by U.S. District Judge Charles Breyer of the Northern District of California. Breyer dismissed a suit over a 1997 protest, the fourth in a series of demonstrations against government plans to tear down former military housing at what is now San Francisco Presidio National Park, rather than use it to shelter the homeless.

The demonstrations were led by Sister Bernie Galvin of Religious Witness with Homeless People. After the first three marches led to arrests and prosecutions for trespass, the U.S. Park Police informed Galvin that no further marches would be permitted unless the group agreed not to engage in civil disobedience.

Galvin rejected the condition, and 150 or more members of her group gathered without a permit in front of the building housing the park offices and Visitor Center on March 9, 1997. Their purpose, one of the clergy members said later, was to “have a witness that is highly visible so that we can draw attention” to the 466 housing units that were later torn down as the park was largely restored to its natural state.

Informed by a police official that, as previously explained, they could not demonstrate without a permit and would only be issued a permit if they agreed not to engage in civil disobedience, the leaders again rejected the condition and began a prayer service.

‘First Amendment Area’

The group was then ordered to move to a “First Amendment area” about 175 yards away in what one of the protest leaders described as “the boonies,” a section covered with overgrowth where the demonstrators would not be seen or heard by those congregating near the Visitor Center.

Proximity to the administration building was symbolically important, they added, since the building symbolized the power they were confronting.

Some complied, but 83 did not and were arrested and charged with demonstrating without a permit. Most were convicted, but a 1999 Ninth Circuit ruling threw out the convictions on the ground that the “no civil disobedience” condition was an illegal prior restraint on speech.

Several of those convicted then brought suit for violation of their constitutional rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and for false arrest under the Federal Tort Claims Act.

They raised two separate constitutional claims, the first being the prior-restraint issue that they prevailed on in the criminal case. The other was that the dispersal of the prayer service violated the First Amendment.

Breyer dismissed the first claim on qualified-immunity grounds, saying the Park Police could not have known prior to the 1999 ruling that the “no civil disobedience” condition was unconstitutional. As to the dispersal of the prayer service, the judge said the Park Police had imposed a reasonable time, place, and manner restriction on the plaintiffs’ exercise of their rights.

The Ninth Circuit panel agreed with the district judge on the first issue. It  disagreed with Breyer as to the reasonableness of requiring the demonstrators to move to the “boonies,” concluding that they had a right to be seen and heard by their intended audience, but adopted the defendants’ alternative argument that qualified immunity applied to the dispersal of the prayer service.

Speech Burdened

Judge Marsha Berzon, writing for the panel, said the requirement that the plaintiffs use the “First Amendment area” “did burden [the group’s] speech to a substantially greater degree than was needed to achieve the government’s purposes.” She cited testimony by a police official that the plaintiffs would have been permitted, had they asked, to hold the service in a parking lot directly in front of the Visitor Center but were never offered the option.

But a reasonable official could have concluded, based on the pre-1997 case law, that sending the demonstrators to an area just 175 yards from their preferred site was appropriate as a “narrowly tailored” restriction on speech, Berzon said.

“Our application of the time, place, and manner standard to the circumstances of this case demonstrates that the right violated by the defendants...has contours that were clearly established only subsequent to the events in question,” the judge explained.

Earlier cases, she noted, dealt with the right to reach an audience in a traditional public forum but did not address the symbolic importance of being allowed to demonstrate in a particular location.

Senior Judge Procter Hug Jr. and District Judge Robert Lasnik of the Western District of Washington, sitting by designation, concurred in the opinion.

The case is Galvin v. Hay, 00-17425.


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