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VILLEGAS v. CITY OF GILROY

April 4, 2005.

GEORGE VILLEGAS, et al., Plaintiff(s),
v.
CITY OF GILROY, et al., Defendant(s).



The opinion of the court was delivered by: JAMES WARE, District Judge

ORDER DISMISSING DEFENDANT OFFICER D. BERGMAN FROM LAWSUIT AND GRANTING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiffs George Villegas, Bob Poelker, Marcelo Orta, and Don Derosiers (collectively, "Plaintiffs") are members of the Top Hatters Motorcycle Club, a male-only motorcycle club. In 2000, Plaintiffs attended the Gilroy Garlic Festival sporting their Top Hatters Motorcycle Club vests, which are adorned with patches and pins that indicate their membership in the Club. Festival security officials, however, claimed that Plaintiffs' vests constituted "gang colors or insignia" and, therefore, violated the Festival's dress code policy. Festival security officials asked Plaintiffs to remove their vests, but Plaintiffs refused to comply. Festival security officials then expelled Plaintiffs from the Festival. Plaintiffs filed suit against the City of Gilroy and the Gilroy Garlic Festival Association, Inc. ("GGFA") (collectively "Defendants")*fn1 claiming violations of their First Amendment rights to free expression and free association under 42 U.S.C. § 1983. (Complaint, Docket Item No. 1, ¶¶ 14, 16.) Plaintiffs also claim violations of their free speech rights under CAL. CONST. art. I, § 2 (Liberty of Speech) and violations of their civil rights under California's Unruh Civil Rights Act, CAL. CIV. CODE § 51 et seq. (See Complaint, Docket Item No. 1, ¶¶ 18-19.) Presently before this Court are Defendants' Motions for Summary Judgment (hereinafter "Defendants' Motions"). (See City of Gilroy's Motion for Summary Judgment, hereinafter "City of Gilroy's Motion," Docket Item No. 60 and GGFA's Motion for Summary Judgment, hereinafter "GGFA's Motion," Docket Item No. 62.) On Tuesday, March 1, 2005, this Court held a hearing regarding Defendants' Motions. For the reasons set forth below, this Court grants Defendants' Motions.

II. BACKGROUND

 
Gilroy, California. Population 20,000. Except early August. Then it swells fivefold. One hundred thousand people going bananas over GARLIC!*fn2
A. The Gilroy Garlic Festival
  Gilroy, California is sometimes referred to as the Garlic Capital of the World. (See, e.g., Declaration of Richard Nicholls in Support of GGFA's Motion, hereinafter Nicholls Decl., Docket Item No. 63, ¶ 3.) Once a year, for a few days in the summer, GGFA, a non-profit corporation, sponsors and runs the Gilroy Garlic Festival. The Festival offers:
 
food, contests, music, and family recreation activities — with an emphasis on garlic — in a family friendly environment. The events and activities at the Festival include . . .: the Great Garlic Cook-Off cooking contest; Gourmet Alley, where garlic-laced calamari and scampi, garlic chicken stir fry, garlic sausage sandwich, and garlic bread are served; and a children's area, where magicians, dance troups, puppets, and jugglers offer entertainment geared toward children.
(Nicholls Decl. ¶ 2-3.)

  The 2000 Gilroy Garlic Festival was held in Christmas Hill Park, a public park in the City of Gilroy, from July 28 to July 30. (Nicholls Decl. ¶ 4.) In order to secure this venue, GGFA entered into a facility reservation contract with the City of Gilroy. (Nicholls Decl. ¶¶ 5-6.) Under the terms of this agreement, GGFA was "required to have security at the Gilroy Garlic Festival" and to have police officers present. (Nicholls Decl. ¶ 7; Nicholls Decl. Ex. A at 4, 6.)

 
Security at the Festival is provided by the City of Gilroy Police Department and a private security company. The City of Gilroy Police Department staffs the Festival with a mixture of law enforcement officers from the City of Gilroy Police Department, the Santa Clara County Sheriff's Office, State Parole, and other local law enforcement agencies.
(Nicholls Decl. ¶ 8.)

  GGFA itself "has a chair of security and an assistant chair of security, which are non-paid volunteer positions[,] [one of whom is] [g]enerally . . . a law enforcement officer with the City of Gilroy Police Department or another local law enforcement agency." (Nicholls Decl. ¶ 7; see also Declaration of G. Martin Velez in Support of GGFA's Motion, hereinafter Velez Decl., Docket Item No. 65, Ex. A at 86:13-17 (Q. . . . [A]s far as you know for the many years you've been associated with the Gilroy Police Department or with the fair, whoever was asked [to serve as GGFA's chair of security] basically served; correct? [¶] A. True.").) "At the conclusion of the Festival, the City of Gilroy Police Department submits a bill for expenses incurred in providing law enforcement officers to staff the Festival to GGFA." (Nicholls Decl. ¶ 9.)

  At the 2000 Gilroy Garlic Festival, GGFA had a dress code policy in place; although, as Plaintiffs point out, "at the time of this incident, there wasn[']t [sic] any written dress code policy in existence, nor was there any such policy posted at any place." (Plaintiffs' Opposition to Defendants' Motion, hereinafter Plaintiffs' Opposition, Docket Item No. 71, at 3:7-8.) According to GGFA's alleged dress code policy, "Persons wearing clothing with gang colors or insignia were allowed to remain at the Festival if they removed the clothing. Individuals refusing to remove clothing with gang colors or insignia were not permitted to remain at the Festival." (Nicholls Decl. ¶ 10.) This policy was "adopted as a response to an increase in gang related violence at the Festival in past years which had negatively impacted attendance at the Festival." (Nicholls Decl. ¶ 10.)

  B. Plaintiffs at the Gilroy Garlic Festival

  Plaintiffs are four members of the Top Hatters Motorcycle Club, a male-only non-profit corporation whose "specific . . . purposes . . . are to promote good will and understanding among disparate community groups and to raise and distribute funds to other charitable organizations or to needy individuals." (Velez Decl. Ex. B Ex. 1 at 2-5; see also Exhibits in Support of City of Gilroy's Motion, hereinafter City of Gilroy's Exhibits, Docket Item No. 69, Ex. 1 at 35:3-5.) In particular, Top Hatters are unified by their passion for motorcycles. (City of Gilroy's Exhibits Ex. 3 at 34:21-23.) Oftentimes, the Top Hatters organize and sponsor events with other motorcycle clubs (such as the Hells Angels) to raise money for charitable causes. (City of Gilroy's Exhibits Ex. 2 at 29:13-25.)

  On July 30, 2000, Plaintiffs attended the Gilroy Garlic Festival to celebrate Plaintiff Bob Poelker's birthday. (Velez Decl. Ex. B at 11:4-11, Ex. E at 6:19-20, 31:11-14, 42:4-9.) Plaintiffs attended the Festival sporting their Top Hatters Motorcycle Club vests. (Velez Decl. Ex B at 11:19-20, 16:24-17:2.) These vests are made of either blue denim or black leather, and are adorned with various patches and pins that indicate membership in the Top Hatters. (Velez Decl. Ex. F; City of Gilroy's Exhibits Ex. 5.) On their backs is a large insignia depicting a human skull wearing a top hat. From behind the skull, and on either side of it, stretch two bird-wings. Above the insignia, in large letters, appear the words "Top Hatters." Below the insignia appears the word "California." However, at the time of the 2000 Gilroy Garlic Festival, the word "Hollister" appeared below the insignia. (City of Gilroy Exhibits Ex. 1 at 18:1-8.)

  As Plaintiffs entered the Festival sporting their vests, Gilroy Police Sergeant Donald Kludt, GGFA's chair of security, spotted Plaintiffs, contacted Gilroy Police Officer Bergman, and requested that she escort Plaintiffs back to the gate. Officer Bergman was armed and uniformed and assigned to Festival security. (City of Gilroy's Motion at 2:2; Velez Decl. Ex. A at 59:9-15, 65:14-15, 66:9-10; 68:2-4, Ex. B at 12:20-16:3; City of Gilroy's Exhibits Ex. 1:71:20-24.) In his deposition, Sergeant Kludt explained why he contacted Officer Bergman for assistance:
Q. Was it the fact that she [Officer Bergman] was an armed uniformed officer, was that part of your thought process in wanting her to be with you?
A. Yeah.
Q. Because you were not armed; correct?
A. Correct.
Q. And you were not uniformed; correct?
A. Correct.
Q. And you wanted Officer Bergman to assist you because she would give some air of authority as a police officer; correct? . . .
[Objection]
Q. Would that be a fair statement?
A. Yes.
(Velez Decl. Ex. A at 67:4-20.)
  Officer Bergman approached Plaintiffs and requested that they follow her to the gate. (City of Gilroy's Exhibits Ex. 1 at 71:18-19.) Plaintiffs complied. Once they arrived at the gate, Sergeant Kludt, who was dressed in plain clothes, explained GGFA's dress code policy to Plaintiffs. (Velez Decl. Ex. A at 59:9-15, 79:5.) "I told them that if they refused to remove their [gang] colors and enjoy the festival that we will ask them to leave and then we will refund their money, their entry fee into the festival." (Velez Decl. Ex. A at 79:5-9.) Plaintiffs, however,
felt that this was not right, that they had their rights to wear their vests where they wanted to and this was not right. And I [Sergeant Kludt] told them: Well, I have a policy and I'm enforcing this policy and I'm asking you to leave if you're choosing not to, you know, come into the festival without your colors.
So they left. And then I walked around with them, went to the ticket booth and ordered those people to refund these people their money.
Q. Where was Officer Bergman at the time?
A. Standing next to me.
(Velez Decl. Ex. A at 79:15-25.)

  Defendants advance a number of arguments to support their Motions. This Court addresses three, in particular. First, Defendants argue generally that Plaintiffs' claims under 42 U.S.C. § 1983 fail because neither of them were "state actors." (See City of Gilroy's Motion at 8:1-10:15 and GGFA's Motion at 13:6-20:15.) Second, Defendants argue specifically that Plaintiffs' claim under 42 U.S.C. § 1983 for violation of their First Amendment right to free expression fails because Plaintiffs' conduct was not "speech" protected by the First Amendment. (See City of Gilroy's Motion at 5:7-7:27 and GGFA's Motion at 5:19-10:1.) Third, Defendants argue specifically that Plaintiffs' claim under 42 U.S.C. § 1983 for violation of their First Amendment right to free association fails ...


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