Tuesday, December 2, 2008
Ninth Circuit Revives Free Speech Suit Over Arrest Threat at Cook-Off
By a MetNews Staff Writer
Police in Sparks, Nev. violated the First Amendment rights of citizens who were threatened with arrest for seeking to register voters and obtain petition signatures at a private event held on public land, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel revived Janelle Dietrich’s suit against Sparks Police Officer Mike Cardellla, who allegedly told Dietrich and her group that they would be arrested if they persisted in their activities at the 2002 Best in the West Nugget Rib Cook-Off sponsored by John Ascuaga’s Nugget, a Sparks casino-hotel.
The City of Sparks grants the Nugget a special events permit that allows it to hold the cook-off in Victorian Square in downtown Sparks, with some nearby streets being closed off. Dietrich and her group sought to take advantage of the crowds at the event to obtain signatures on petitions to recall four City Council members in nearby Reno.
U.S. District Judge Brian Sandoval of the District of Nevada granted summary judgment in favor of all defendants in Dietrich’s 42 U.S.C. Sec. 1983 suit, including the City of Sparks, the Nugget, and the Nugget employees at whose behest Cardella was acting. Sandoval ruled that there was no constitutional violation because the Nugget had a First Amendment right to exclude political activities from the event.
But Judge Susan Graber, writing for the Ninth Circuit, said Dietrich had a First Amendment right to seek signatures and register voters at the event.
She cited Gathright v. City of Portland (2005) 439 F.3d 573, which held that a street preacher had the right to speak at various public gatherings, even though his comments—including calling women “whores,” “sluts,” “Jezebels,” “prostitutes” and “daughters of Babylon” and wearing a t-shirt reading “Got AIDS Yet?” at an event celebrating tolerance of homosexuality—offended many of the other attendees.
Dietrich’s suit, like that of the plaintiff in Gathright, is distinguishable from Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc. (1995)
515 U.S. 557, Graber said. Hurley held that the private organization that sponsors the annual St. Patrick’s Day Parade in Boston had a First Amendment right to bar a pro-gay rights group from marching in support of political and social views with which the sponsor disagreed.
“As in Gathright...the permitted event was open to the public, and there is little
chance that the public would have viewed Plaintiff’s petitioning activities as endorsed by the Cook-Off,” Graber wrote. “To the extent that such a concern existed, Defendant Nugget easily could have disclaimed Plaintiff’s activities with a sign or through some other simple mechanism.”
Because the district judge erroneously ruled that there was no constitutional violation, Graber went on to say, he never ruled on the officer’s claim of qualified immunity, so that issue will have to be addressed on remand.
The panel did, however, uphold Sandoval’s grant of summary judgment in favor of the other defendants.
The city, Graber explained, cannot be held liable because there was no showing that the officer acted pursuant to a city policy, and there was no rebuttal to the chief of police’s affidavit declaring that the city has no policy of excluding citizens exercising free speech rights from events held on public land pursuant to special permit.
The Nugget and its employees, the judge said, cannot be held liable under Sec. 1983 because they are private parties and did not become state actors merely because they called the police.
Ninth Circuit Senior Judge J. Clifford Wallace and Senior Judge Robert J. Timlin of the Central District of California, sitting by designation, concurred in the opinion.
The case is Dietrich v. John Ascuaga’s Nugget, 06-17135.
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