Metropolitan News-Enterprise


Thursday, September 4, 2008


Page 1


Court Rejects Motorcyclists’ Civil Rights Suit Against Festival


By STEVEN M. ELLIS, Staff Writer


The organizer of the Gilroy Garlic Festival did not violate the civil rights of four motorcycle club members when it prevented the men from wearing vests displaying their club affiliation, a divided en banc panel of the Ninth U.S. Circuit Court of Appeals held yesterday.

Affirming a grant of summary judgment against members of the Top Hatters motorcycle club, the court ruled 6-5 in an opinion by Judge Diarmuid F. O’Scannlain that the festival’s non-profit organizer was not a state actor against whom a civil rights action could be maintained because the festival association lacked a close nexus to city government.

However, Judge Sidney R. Thomas dissented that the majority—in considering only one part of the “established four test analysis” for reviewing whether a private party had engaged in state action—had “set up a straw man to prove what we already know,” and wrote that a triable issue of material fact existed whether the festival association’s actions were fairly attributable to the state under the “joint action” test.

The four men were ejected from the festival, which occurs annually in a public park in the City of Gilroy, by an on-duty police officer in 2000 after they declined to remove vests that included an image of a skull with wings and a top hat with the words “Top Hatters” above the top hat and the word “Hollister” written below.

The officer did so at the request of the festival’s chair of security, himself an off-duty police officer, who acted pursuant to an unwritten policy prohibiting festival guests from wearing “gang colors or other demonstrative insignia, including motorcycle club insignia.”

Claiming violations of their First Amendment rights by both the city and the festival association, the men argued the association could be held liable for violating their civil rights—even though it was ostensibly a private actor—because there was a sufficiently “close nexus” between the association and the city.

In support, the men pointed to the festival’s location on city property; the city’s issuance of a permit requiring use of police officers as security, for which reimbursement to the city was required; and the use by the festival association’s head of security—typically a police officer, and that year an active member of the city police department—of a police command post on festival grounds.

U.S. District Judge James Ware of the Northern District of California granted summary judgment in favor of the festival association and the city. Ruling that wearing such vests was neither expressive conduct nor expressive association within the protection of the First Amendment, Ware also concluded that the festival association was not a state actor in any event.

A three-judge panel of the Ninth Circuit then affirmed, but declined to reach the state action issue, holding only that the motorcycle club insignia was subject to expressive conduct analysis but that there was no First Amendment violation.

However, after rehearing en banc, O’Scannlain opined that Ware’s conclusion that the festival association was not a state actor was correct because “running festivals is not a traditional municipal function,” and because the association had neither exercised plenary control and complete governmental power over the property, nor had the city exercised “a dominant role in controlling the actions of the organization or the content of the festival.”

O’Scannlain also wrote that the city could not be held liable for violating the men’s First Amendment rights by enforcing the dress code because it is not a constitutional violation for a police officer to enforce a private entity’s rights, and because there was no evidence to support a conclusion that the city had a policy or custom of enforcing the festival association’s dress code.

But Thomas disagreed, writing that the festival association’s actions were fairly attributable to the state under the “joint action” test, which looks to see whether a private party is a willful participant in joint action with the state.

Noting that the festival—“the largest event of the year in Gilroy”—expands the city’s population five-fold and requires the assistance and involvement of at least five city departments or divisions, he wrote that “the very nature of the festival requires significant intertwining of resources” between the city and festival association.

Thomas argued that the presence of an agreement between the festival association and the city, the participation of state actors in the festival association, and the fact that police officers providing security took orders from the festival association on dress code enforcement similarly supported a conclusion of joint action.

He also opined that in light of the record evidence “there is little doubt” the city had a policy of assisting in the enforcement of the dress code, and added that, had it been necessary to consider whether the plaintiffs’ constitutional rights were violated, he would have held that the Top Hatters’ act of wearing their motorcycle club vests and insignia was expressive conduct protected by the First Amendment.

Chief Judge Alex Kozinski, and Judges Pamela Ann Rymer, M. Margaret McKeown, Consuelo M. Callahan and N. Randy Smith joined O’Scannlain in his opinion. Judges Kim McLane Wardlaw, Raymond C. Fisher and Richard A. Paez joined Thomas in his dissent.

Judge Ronald M. Gould wrote separately that he agreed with most of the majority’s analysis with respect to the city’s liability as to enforcement of the dress code, but he joined Thomas’ dissent as to whether joint action between the city and the festival association made the association a state actor.

The case is Villegas v. Gilroy Garlic Festival Association, 05-15725.


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