Spears v. Arizona Board of Regents

          ORDER

          CINDY K. JORGENSON, UNITED STATES DISTRICT JUDGE

         Pending before the Court is the Motion to Dismiss (“MTD”) (Doc. 27) filed by State Defendants and the Motion for Preliminary Injunction (Doc. 35) filed by Plaintiff Roy E. Spears (“Spears”). The parties have thoroughly presented the facts and briefed the legal issues. Therefore, the Court declines to set this matter for oral argument. See LRCiv 7.2(f); 27A Fed.Proc., L.Ed. § 62:367 (March 2016) ("A district court generally is not required to hold a hearing or oral argument before ruling on a motion.");

         I. Factual and Procedural Background^[1]

         Spears attended the 2017 Festival of Books on the University of Arizona (“UA”) campus mall (“UA Mall”) on March 17, 2017. Within minutes of arriving on campus, “booming sound amplification immersed Spears.” Amended Complaint (“FAC”) (Doc. 7, ¶ 33). Spears put on his GoPro, amplification system, headset microphone, placed Gospel signs around a tree, held one Gospel sign, and began to speak at approximately 12:20 p.m.

         Within seven minutes, Rebekah Salcedo (“Salcedo”), a UA “First Amendment Monitor, ” approached and said, “I'm going to ask you to turn off your microphone. The only sound permission for the Festival are the sound stages. You can certainly be here and talk with people but not with the microphone.” Id. at ¶ 35. She further stated, “The permit for this weekend for the sound stages were given to the sound stages. There is no permits for amplified sound[.]” Id. at ¶ 37. When Spears disagreed with “Salcedo's arbitrary interpretation of the long-standing weekend UA policy allowing amplification being superseded by the presence of the Festival[, ]” id. at ¶ 38, Salcedo replied, “No, it is not arbitrary because the Festival of Books reserved the stage and the sound licenses for this weekend were given to the stages.” Id. at ¶ 39. The FAC alleges:

84. Though the UA admits that sound amplification is allowed on the weekends, they adopt a curious policy for banning all amplified speech from either UA students or the public during the Festival. In fact, no one without a permit can amplify sound during the Festival except those who are officially part of it: the authors, musicians, non-profits, vendors, etc.

85. The UA accomplishes this permitting scheme through an ad hoc, unwritten and unnamed policy referred to as the “sound amplification policy” and is only applicable once a year during the Festival.

86. Though UA officials refer to this vague policy when denying students and the public's first amendment right to amplify during the Festival, they cannot produce official documentation detailing precisely what this policy states—it does not exist except, perhaps, in a single section on a Mall form titled, “The University of Arizona Commercial and Campus Use Activity Form.” ¹¹

¹¹https://drive.google.com/open?id=0B9m1G5k2wXI6TDB6QzJaaW1uQn JPZ1 hpSU5vajBuU2tYR0Jj[.] See middle of page 1, “Sound Amplification?”

FAC (Doc. 7, ¶¶ 84-86).

         Dean of Students Kathy Adams Riester (“Riester”) arrived several minutes later. Riester told Spears his amplifying sound was disruptive to the Festival of Books and that volunteers from the Festival had complained.^[2]

         Spears was given three warnings, but he continued to speak with amplification. University of Arizona Police Department (“UAPD”) Officer Ian Theel (“Theel”) advised Spears that, if he continued to speak using amplification, he would face arrest if he failed to obey Riester. After Spears continued to speak using amplification, Spears was arrested. Spears was subsequently stripped of his possessions and placed in the police cruiser of UAPD Officer Picktrom (“Picktrom”). Picktrom transported Spears to the Pima County Adult Detention Center. Spears was held for nine hours. On March 28, 2018, Spears was found guilty of third-degree criminal trespass. Spears has appealed his conviction.

         On March 8, 2018, Spears filed a civil rights Complaint (Doc. 1) with this Court. On May 29, 2018, Spears filed his FAC (Doc. 7). The FAC lists the Arizona Board of Regents (“ABOR”), Brian Seastone (“Seastone”) in his official capacity as Chief of Police for the University, Greg Ewer (“Ewer”), individually and in his official capacity as police officer for the UAPD, Theel, individually and in his official capacity as police officer for the UAPD; Picktrom, individually and in his official capacity as police officer for the UAPD, Riester, individually and in her official capacity as Dean of Students for the UA, as Defendants. Spears alleges claims of Count I, violation of freedom of speech, Count II, violation of due process clause, Count III, violation of Fourteenth Amendment right to equal protection, Count IV, intentional infliction of emotional distress, Count V, abuse of process, Count VI, false light, Count VII, violation of Fourth Amendment - arrest without probable cause, and Count VIII, false arrest/false imprisonment.

         On July 5, 2018, Defendants filed a Motion to Dismiss (Doc. 27). Spears has filed a response (Doc. 31) and Defendants have filed a reply (Doc. 34).

         On December 18, 2018, Spears filed a Motion for Preliminary Injunction (Doc. 35). Defendants have filed a response (Doc. 38) and Spears has filed a reply (Doc. 40).

         II. Requirement that Action State a Claim on Which Relief Can be Granted

         Defendants assert Spears has failed to state a claim against them. A complaint is to contain a "short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed.R.Civ.P. 8(a). A complaint must set forth a set of facts that serves to put defendants on notice as to the nature and basis of the claim(s). The United States Supreme Court has found that a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a complaint need not plead “detailed factual allegations, ” the factual allegations it does include “must be enough to raise a right to relief above the speculative level.” Id. at 555; see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("If there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss[.]"). Further, Fed.R.Civ.P. 8(a)(2) requires a showing that a plaintiff is entitled to relief “rather than a blanket assertion” of entitlement to relief. Twombley, 127 S.Ct. at 1965 n. 3. The complaint “must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right to action.” Id. at 1965.

         The Court considers the Complaint in light of Twombly and must determine if Spears has “nudge[d] [the] claims across the line from conceivable to plausible.” Id. at 570. The Court also considers that the Supreme Court has cited Twombly for the traditional proposition that “[s]pecific facts are not necessary [for a pleading that satisfies Rule 8(a)(2)]; the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardue, 551 U.S. 89, 93 (2007). Indeed, Twombly requires “a flexible ‘plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007); see also Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) (for a complaint to survive a motion to dismiss, the non-conclusory “factual content, ” and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief).

         This Court must take as true all allegations of material fact and construe them in the light most favorable to Spears. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003). In general, a complaint is construed favorably to the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, 457 U.S. 800. Nonetheless, the Court does not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Furthermore, the Court is not to serve as an advocate of a pro se litigant, Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), in attempting to decipher a complaint.

         If a court determines that dismissal is appropriate, a plaintiff must be given at least one chance to amend a complaint when a more carefully drafted complaint might state a claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991). Moreover, when dismissing with leave to amend, a court is to provide reasons for the dismissal so a plaintiff can make an intelligent decision whether to file an amended complaint. See Bonanno v. Thomas, 309 F.2d 320 (9th Cir. 1962); Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987).

         III. Consideration of Materials Outside the Pleadings

         In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002). A court must normally convert a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment if it “considers evidence outside the pleadings . . . A court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir.2003); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (a court may consider “other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice”); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994) (noting that a court may consider a document whose contents are alleged in a complaint, so long as no party disputes its authenticity) (overruled on other grounds).

         The FAC in this case references and incorporates numerous documents and videos. Spears does not dispute the authenticity of the documents and videos; indeed, he has not objected to this request. The Court finds it may consider those documents and videos in determining the MTD without converting it into a motion for summary judgment.

         IV. Qualified Immunity

         Government officials are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Liston v. County of Riverside, 120 F.3d 965, 975 (9th Cir. 1997), citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity protects governmental defendants from liability, but is also “‘an entitlement not to stand trial or face the other burdens of litigation.' [It] is ‘an immunity from suit rather than a mere defense.'” Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Indeed, qualified immunity allows for errors in judgment and protects "all but the plainly incompetent or those who knowingly violate the law . . . [I]f officers of reasonable competence could disagree on the issue [whether or not a specific action was constitutional], immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986). The Court must determine "whether, in light of clearly established principles governing the conduct in question, [defendants] objectively could have believed that [their] conduct was lawful." Watkins v. City of Oakland, 145 F.3d 1087, 1092 (9th Cir. 1998).

         In determining qualified immunity, a court considers "this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show [defendants'] conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Billington v. Smith, 292 F.3d 1177, 1183 (9th Cir. 2002). If no constitutional right was violated, then there is no need for any further inquiries into qualified immunity. See e.g., Scott, 127 S.Ct. at 1774. If the evidence supports a finding that a constitutional rights has been violated, the court then “ask[s] whether the right was clearly established” such that “it would be clear to a reasonable officer that [his] conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 201-202. Additionally, the United States Supreme Court has determined that the sequence set forth in Saucier is not mandatory and that district courts may "exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009); see also Olivier v. Baca, 913 F.3d 852, 860 (9th Cir. 2019) (“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.”) (citation omitted).

         A plaintiff has the burden of showing the alleged violation of a clearly established federal right. Davis v. Scherer, 468 U.S. 183, 197 (1984); Olivier, 913 F.3d at 860; Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011). The Supreme Court has stated that:

the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citation omitted). Further, the Supreme Court has repeatedly stated that courts are not to define clearly established law at a high level of generality; rather, “[t]he dispositive question is ‘whether the violative nature of particular conduct is clearly established.'” Mullenix v. Luna, --- U.S. ---, 136 S.Ct. 305, 308, (2015) (citation omitted, emphasis in original).

         V. Alleged Violation of First Amendment Right to Free Speech (Count I)

         Spears alleges Defendants violated his right to free speech. The First Amendment prohibits government officials from "abridging the freedom of speech . . . or the right to the people peaceably to assemble." U.S. Const. amend. I. "[T]he First Amendment reflects a 'profound national commitment' to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . and [the Supreme Court] ha[s] consistently commented on the central importance of protecting speech on public issues." Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988).

         A. Forum Analysis

         The first step in analyzing Spears' claim is to determine the nature of the relevant forum. OSU Student All. v. Ray, 699 F.3d 1053, 1062 (9th Cir. 2012) (citing Ariz. Life Coal. Inc. v. Stanton, 515 F.3d 956, 968 (9th Cir. 2008)). “Forum analysis has traditionally divided government property into three categories: public fora, designated public fora, and nonpublic fora.” Flint v. Dennison, 488 F.3d 816, 830 (9th Cir. 2007) (internal quotation marks omitted). A traditional public forum is a place “which by long tradition ... ha[s] been devoted to assembly and debate.” Id. (internal quotation marks omitted). A designated public forum “exists when the government intentionally dedicates its property to expressive conduct.” Id. (internal quotation marks omitted). A non-public forum is “any public property that is not by tradition or designation a forum for public communication.” Id. (internal quotation marks omitted). A limited public forum has also been recognized. This is a partially designated public forum:

The government is not left with only the two options of maintaining a non-public forum or creating a designated public forum; if the government chooses to open a non-public forum, the First Amendment allows the government to open the non-public forum for limited purposes. The limited public forum is a sub-category of a designated public forum that refers to a type of nonpublic forum that the government has intentionally opened to certain groups or to certain topics.

Id. at 830-31 (internal quotation marks omitted).

         As summarized by the Ninth Circuit:

In traditional and designated public forums, content-based restrictions on speech are prohibited, unless they satisfy strict scrutiny. Pleasant Grove [ City, Utah v. Summum, 555 U.S. 460, 469-70 (2009)]. In limited public forums, content-based restrictions are permissible, as long as they are reasonable and viewpoint neutral. See id. at 470 [].

Seattle Mideast Awareness Campaign v. King Cty., 781 F.3d 489, 496 (9th Cir. 2015).

         The parties dispute whether the UA Mall is a traditional public forum. Spears asserts the UA's own policy on the forum characteristics of the property refers to an “open public forum” as well as a “designated public forum.” Because open is defined by an online dictionary as “accessible to all; unrestricted as to participants. Free from limitations, boundaries, or restrictions[, ] https://www.thefreedictionary.com/open, Spears argues this suggests a traditional rather than a designated public forum: “There can be no question that the public sidewalk Spears was arrested upon is ‘by long tradition or by government fiat' been ‘devoted to assembly and debate.'” Response (Doc. 31, p. 13).^[3] Defendants assert, however, that “a public university's mall, surrounding streets and sidewalks are [not] a traditional public forum[.]” The Supreme Court has stated:

A university differs in significant respects from public forums such as streets or parks or even municipal theaters. A university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings.

Widmar v. Vincent, 454 U.S. 263, 268, n. 5 (1981).

         Contrary to Spears' arguments, the UA Mall “is not akin to a public street, park, or theater, but instead is an institute of higher learning that is devoted to its mission of public education. This mission necessarily focuses on the students and other members of the University of Arizona (“UA”) community. Accordingly, it has not traditionally been open to the public at large, but instead has been a “special type of enclave” that is devoted to higher education.” Am. Civil Liberties Union v. Mote, 423 F.3d 438, 444 (4th Cir. 2005) (citing United States v. Grace, 461 U.S. 171, 180, (1983)). Spears seems to emphasize that he was on a public sidewalk. However, that sidewalk was within a public university and the UA Mall.

         Spears asserts the UA relies on an unwritten policy regarding sound amplification. However, he does refer to the UA Policy and Regulations Governing the Use of the Campus, MTD, Ex. A (Doc. 27-1) in his FAC. See e.g. FAC (Doc. 7, p. 26). Spears asserts the applicable UA policy is confusing. The policy defines relevant terms as follows:

7. “Designated Public Forums”: The University's campus contains buildings and property whose primary purpose is to provide education, research, and outreach. However, the University often designates areas to allow access by the University Community or to create limited forums for the discussion of certain topics or subject matter by certain speakers, each at times when the property is not being used for its devoted purposes.

8. “Limited Public Forum” is a subcategory of the Designated Public Forum that occurs when the University intentionally opens a Non-Public Forum to speech or to activities related specifically to defined subject matters for certain groups on certain topics.

9. "Mall" refers to the grassy areas between Park Avenue and Campbell Avenue and along University Boulevard East and University Boulevard West that is designated for expressive activities or Limited Public Forums, subject to the qualifications, definitions, and procedures set forth in this policy.

a. "Reserved Area" refers to those portions of the University campus designated for reservations only which are scheduled to maximize the availability and use of the space consistent with the University's educational, research, service, and business functions. Use of Reserved Areas is subject to reasonable time, place, and manner restrictions.

b. "Unreserved Area" refers to that part of the Mall which may be used without advance reservations or scheduling for expressive activities, including but not limited to the passing of petitions, distribution of written information, picketing, and carrying of placards. Such use is subject to the time, place, and manner limitations set forth in this policy. For the location of the Unreserved Area, see the available space map at http://union.arizona.edu/mall/maps.php.

10. “Non Public Forums” are University buildings, structures, and property that are not designated as spaces open for public communication, activities, or expression, but instead are reserved for normal ...