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COMING UP, INC. v. CITY & CTY. OF SAN FRANCISCO

June 21, 1994

COMING UP, INC. and KIM CORSARO, Plaintiffs,
v.
THE CITY AND COUNTY OF SAN FRANCISCO, RICHARD HONGISTO, ANTHONY RIBERA, GARY DELAGNES, JERRY GOLZ, and TOM YUEN, Defendants. AND RELATED CROSS CLAIMS


Jensen


The opinion of the court was delivered by: D. LOWELL JENSEN

On June 3, 1994, the Court heard plaintiffs' motions to reconsider the Court's grant of qualified immunity to defendant Officers and to reconsider the Court's grant of summary judgment to defendants for the denial of declaratory relief. The Court also heard defendant Hongisto's motions for the Court to reconsider its Order denying him qualified immunity and as to the scope of employment issue. Finally, the Court heard arguments on the defendant City's motion to dismiss the pending California constitutional claims. William Bennett Turner of Rogers, Joseph, O'Donnell & Quinn appeared for plaintiffs. Linda M. Ross and Matthew D. Davis appeared for defendant City and County of San Francisco, Robert R. Moore of Moore & Gulick appeared for defendant Hongisto, and Bruce T. Wilson of Davis, Reno & Courtney appeared for defendant Officers. Having considered the papers submitted, the arguments of counsel, the applicable law, and the entire record herein, the Court finds as follows.

 BACKGROUND

 The Court has previously described the factual setting of this matter. Some specific factual disputes have arisen regarding the motions under submission here and are considered infra, in the Court's analysis of each motion. For ease of review, however, the Court repeats the previous summary of facts from the Order of March 9, 1994. *fn1"

 Briefly put, plaintiffs allege that then San Francisco Police Chief Richard Hongisto reacted to the publication of an issue of a local paper, the Bay Times, by attempting to prevent the free biweekly paper's circulation. The paper contained a front page story that was critical of defendant Hongisto's handling of demonstrations following the well-publicized verdict in the Rodney King beating case. Specifically, the plaintiffs contend that Police Chief Hongisto directed Sergeant Gary Delagnes to remove the Bay Times and Delagnes in turn instructed police inspector Jerry Golz and officer Tom Yuen to confiscate copies of the offending papers from news racks from which the free papers were distributed.

 Plaintiffs contend that Hongisto's plan was executed during the early morning hours of May 8, 1992, when Delagnes, Golz, and Yuen, while on duty and driving an undercover police vehicle, seized the newspapers from the Mission, Castro, and Upper Market districts of San Francisco. Plaintiffs aver that between 2,000 and 4,000 copies of the newspaper were seized and that about 2,000 of the seized newspapers were eventually returned to plaintiffs by members of the San Francisco Police Department.

 On May 15, 1992, after an investigation and a special meeting, the San Francisco Police Commission ("Commission") unanimously decided to discharge Hongisto for his involvement with the seizure of the Bay Times newspapers. On the same date, District Attorney Arlo Smith of the City and County of San Francisco announced that no criminal charges would be filed against Hongisto, explaining that the seizing of these newspapers did not violate state theft laws because the papers were given away for free.

 DISCUSSION

 The Court has before it plaintiffs' motions to reconsider the Court's grant of qualified immunity to defendant Officers and to reconsider the Court's grant of summary judgment to defendants for the denial of declaratory relief. Also under submission are defendant Hongisto's motions for the Court to reconsider its Order denying him qualified immunity and as to the scope of employment issue. Also under submission is defendant City's motion to dismiss the pending California constitutional claims.

 I. Reconsideration of the Court's Qualified Immunity Ruling on Federal Causes of Action

 A. Qualified Immunity for Defendant Officers

 Plaintiffs object to the Court's Order on two grounds. First, plaintiffs urge the Court to only consider the defense of qualified immunity with reference to "clearly established law." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Second, plaintiffs contend that the Court's previous ruling "ignored the existence of a genuine issue of material fact." Plaintiffs' Memorandum in Support of Motion to Reconsider at 3. As plaintiffs have suggested issues of fact and questions of law that merit reconsideration by the Court, the issues are considered in turn. *fn2"

 Plaintiffs agree the Court enunciated the correct legal standard to be applied to questions of qualified immunity. Plaintiffs' Memorandum in Support of Motion to Reconsider at 3 ("the Court acknowledged the proper legal standard."). The Court's Order of March 9, 1994 described the appropriate standard as the following:

 
Under the doctrine of qualified immunity, police officers "performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable [police officer] would have known." Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). However, even in the face of a clearly established constitutional right, police officers are entitled to qualified immunity if a reasonable police officer could have believed that the conduct involved was legal. Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3038-39, 97 L. Ed. 2d 523 (1987). Thus the availability of qualified immunity depends upon the "'objective legal reasonableness' of the action . . . in light of the legal rules that were clearly established' at the time it was taken." Anderson, 107 S. Ct. at 3038 (1987) (quoting Harlow, 102 S. Ct. at 2738-39). Order at 30.

 Since this Court's March 9, 1994 Order, the Ninth Circuit has again summarized the proper analysis for determining whether qualified immunity is appropriate.

 
"First, the district court must determine whether the law governing the official's challenged conduct was clearly established at the time the challenged conduct occurred. The second step then asks whether, under the clearly established law, a reasonable officer could have believed the conduct was lawful. This is a test of the 'objective reasonableness' of the defendant's actions." Mendoza v. Block, 94 C.D.O.S. 2625, 2626 (9th Cir. April 15, 1994) (citations omitted).

 The law and facts of this case must accordingly be reviewed to determine whether the law at issue is clearly established and whether a reasonable officer could have believed his actions were lawful.

 As a general matter, First Amendment jurisprudence is clearly well-established regarding the need to protect publishers and journalists from content based restrictions by governmental officials. Courts have repeatedly, eloquently, and in a wide variety of contexts, emphasized the generalized protections that a free press must receive to "fulfill its essential role in our democracy." New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 2143, 29 L. Ed. 2d 822 (1971) (Black, J., concurring); Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 879, 99 L. Ed. 2d 41 (1988) ("At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern."); Grosjean v. American Press Co., 297 U.S. 233, 56 S. Ct. 444, 449, 80 L. Ed. 660 (1936) ("A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves."). There can be no doubt that restrictions based on content are highly impermissible. See e.g., Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989). Similarly, there is no doubt that the Fourth Amendment generally provides a right not to have newspapers seized from newsracks without a warrant or probable cause. See United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984); Lo-Ji Sales, Inc., 442 U.S. 319, 326 n.5, 60 L. Ed. 2d 920, 99 S. Ct. 2319 (1979)(finding there are "special constraints upon searches for and seizures of material arguably protected by the First Amendment.").

 Broad statements of abstract principles, however, do not describe the legal situation faced by the officers in this case. As in Mendoza, the plaintiff's "legal right cannot be so general as to allow a plaintiff to 'convert the rule of qualified immunity into a rule of virtually unqualified immunity simply by alleging [a] violation of extremely abstract rights.'" 94 C.D.O.S. at 2627 (citations omitted). The Court of Appeals observed, "for qualified immunity purposes, a right must [be] 'clearly established' in a more particularized sense: The contours the right must be sufficiently clear that [at the ...


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