The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is Defendants' Motion for Summary Judgment as to Plaintiff Jesus E. Gonzalez's claim for violation of his First Amendment rights to free speech and freedom of association. (Doc. # 127.)
In 2000, discussion began between then-Chief Tommy Tunson of the Calexico Police Department ("CPD") and representatives of the Calexico Police Officers' Association ("POA") concerning the types of firearms available to Calexico police officers. (Christian Decl. ¶ 8.)
In June of 2001, Chief Tunson authorized the purchase of 15 "AR-15" assault rifles, which were paid for by the individual officers and registered to the CPD. (Sanchez Decl. ¶¶ 4, 10; Barker Decl., Ex. C.) Later in 2001, the AR-15 rifles were issued to the officers who had ordered them. (Christian Decl. ¶ 10.)
In December 2001, Defendant Mario Sanchez became Chief of the CPD. (Sanchez Decl. ¶ 2.) In March 2002, the 15 officers who owned the rifles attempted to register them in their own names. (Sanchez. Decl. ¶ 5.) Chief Sanchez submitted a letter with each registration application stating that "I certify that the firearm to be registered will be used in performing official duties." (Sanchez Decl. ¶ 5, Ex. A.) All of the officers' registration applications were rejected by the California Department of Justice ("California DOJ") in May 2002. Based upon newly-enacted legislation, the AR-15 rifles were now classified as "short barrel rifles," which could only be possessed by law enforcement agencies, and not individuals. (Sanchez. Decl. ¶¶ 6-8.) The California DOJ determined that either the rifles would have to be fitted with longer barrels or would have to be possessed by the CPD rather than by the officers. (Id.) After discussion with Chief Sanchez, the POA decided to keep the rifles registered in the name of the CPD and not to purchase the longer barrels. (Christian Decl., Ex. F; Hackett Decl. ¶ 12.)
During the first half of 2003, the POA and Chief Sanchez and other City officials engaged in discussions regarding the desire of the POA to be trained in the use of the AR-15 rifles. (Christian Decl. ¶¶ 13-20, Exs. B-C; Hackett Decl. ¶¶ 15-17; Sanchez Decl., Ex. I.) The training was delayed because Chief Sanchez rejected the POA's preferred trainer (an officer who the POA believed was already qualified to train them), and instead selected two other untrained officers to attend "Range Master" training, which proved to be a time-consuming process. (Sanchez Decl., Ex. I.) For nearly two years, the AR-15 rifles remained in the officer's possession while being registered to the CPD, during which time the CPD never provided any training on their use and never instituted policies and procedures to govern their use. (Christian Decl. ¶ 10; Hackett Decl. ¶¶ 8-9; Sanchez Decl. ¶ 12; Neujahr Decl. ¶ 8.) Also during this time, the CPD owned "Ruger Mini-14" assault rifles. (Sanchez Decl. ¶ 12.) The POA also requested to be trained in the use of the Mini-14 rifles, but at no relevant time did the CPD "have a program sufficient to train officers in the use of assault weapons." (Sanchez Decl. ¶ 12.) On June 11, 2003, the POA sent a letter to Defendant City Manager Luis Estrada asking him to "reconsider [his] position to agree with Chief Sanchez' decision to not allow [the POA's selected officer] to train officers to use the [AR-15 or the Mini-14] rifles." (Christian Decl., Ex. C.) The POA complained that "[t]he CPD has an armory filled with vital policing equipment that is brand new and is currently of no use to any of the officers because the CPD cannot or is unwilling to get its officers trained." (Christian Decl., Ex. C.)
On August 22, 2003, a California DOJ employee wrote to Chief Sanchez concerning the AR-15 rifles, stating: "If these officers fail to divest themselves of weapons they cannot legally own, I will have to refer this matter to Firearms Division law enforcement section." (Sanchez Decl .¶ 15, Ex. E.) On August 29, 2003, City Manager Estrada "requested" that the AR-15 rifles be turned over to the CPD within seven days. (Estrada Decl. ¶ 8, Ex. A.) City Manager Estrada's deadline passed without any officer surrendering a rifle. (Sanchez Decl. ¶ 17.) On September 15, 2003, Chief Sanchez issued a written order to each officer in possession of an AR-15 rifle, requiring that the weapon be returned to the CPD by 5:00 p.m. on September 24, 2003, or the officer would face disciplinary action up to and including termination. (Sanchez Decl. ¶ 18, Ex. G.)
On September 24, 2003, at approximately 11:00 a.m., a group of approximately 20 CPD officers assembled in a public park directly across the street from the CPD station. (Christian Decl. ¶¶ 26, 29; Gonzalez Dep. at 84; Gerardo Decl. ¶ 3.) The officers were in plain clothes, most wearing black T-shirts bearing the letters "CLX POA." (Gerardo Decl. ¶ 3.) Many officers carried signs, saying, among other things: "Chief Sanchez you are a liar and not a man of your word," "Chief Sanchez your leadership is irresponsible," "Chief Sanchez's ego equals ignorance," "Chief Sanchez you don't support us we don't support you," and "Give us the tools to do our job!" (Hedrick Decl. ¶ 7, Ex. A.) One sign depicted Chief Sanchez's name with a circle and slash symbol over it. (Id.) Two protesters wore black ski masks. (Duran Decl. ¶ 80; Navarro Decl. ¶ 20.) Many of the officers held AR-15s, with the barrels pointed to the ground or "straight up, not at anyone and not waving around." (Duran Decl. ¶ 57; Christian Decl. ¶ 32.) There were numerous members of the media documenting the protest. (Christian Decl. ¶¶ 33-34; Nestor Gonzalez Decl. ¶ 20.) Some officers conducted interviews regarding the situation, criticizing Chief Sanchez and stating that this issue concerned officer safety and public safety. (Hedrick Decl. ¶ 7, Ex. A.) The officers did not yell or use profanity during the protest. (Christian Decl. ¶ 31; Duran Decl. ¶ 55.)
At some point, approximately 13 of the officers holding rifles walked in single-file across the street to the public entrance of the CPD station. (Cuellar Decl. ¶ 36; Hackett Decl. ¶ 24.) The officers piled the rifles on the front counter of the station while they waited for someone in authority to collect the rifles on behalf of the CPD. (Hackett Decl. ¶ 25; Garvin Decl. ¶ 4, Ex. B.) One officer conducted a media interview in the lobby of the station. (Garvin Decl. ¶ 4, Ex. B.) After the officers waited nearly 45 minutes, a CPD Lieutenant led the officers to a break room in the station, where she inventoried the rifles and took possession of them on behalf of the CPD. (Hackett Decl. ¶¶ 25, 28; Martinez Lara Decl. ¶ 11.)
Plaintiff Jesus E. Gonzalez, a CPD officer, was not on-duty on the day of the protest. (Gonzalez Dep. at 84, 141.) On the morning of the protest, Plaintiff attended a training seminar at City Hall, near the CPD station. (Gonzalez Decl. ¶¶ 18-19.) After the seminar, Plaintiff--who was not one of the officers who owned an AR-15 rifle--joined the protesting officers in the park across the street from the CPD station. (Gonzalez Dep. at 95; Gonzalez Decl. ¶¶ 2, 21.) Plaintiff wore a black POA T-shirt. (Sanchez Decl. ¶ 26.) According to Plaintiff, he did not hold a sign, wear a ski mask, or say anything during the protest. (Gonzalez Decl. ¶ 24; Gonzalez Dep. at 89.) Plaintiff testified: "I just stood there. I was just there because I supported my association." (Gonzalez Dep. at 95.) Plaintiff later testified: "I was just there because I wanted to be trained and possess [the AR-15 rifle] while on duty. . . . I was just there to let them know I wanted some kind of training to defend myself where I needed to while on the streets." (Gonzalez Dep. at 96.) According to Plaintiff, the purpose of the protest was "to raise public awareness of the safety issue." (Gonzalez Decl. ¶ 24.) Plaintiff testified that during the protest, he handled the rifles while assisting another officer who "was checking the rifles to make sure they were not loaded for officer safety reasons." (Gonzalez Dep. at 134; see also Gonzalez Decl. ¶ 20 ("I noticed that Sgt. Duran was moving rifles from a vehicle and placing them in a box. I began to assist Duran with the rifles, helping to check the chambers of the rifles the officers were bringing into the park.").) Plaintiff did not go into the CPD station on the day of the protest. (Gonzalez Decl. ¶ 26; Gonzalez Dep. at 90.)
Plaintiff had been with the CPD just under a year, and as such was still under the CPD's standard one-year probationary period for new officers. (Sanchez Dep. II at 88.) On September 25, 2003, the day after the protest, Defendant Lt. James Neujahr of the CPD gave Plaintiff a letter stating that his probation term had been extended to February 27, 2004. (Gonzalez Decl. ¶ 31.) On September 30, 2004, Chief Sanchez fired Plaintiff. (Gonzalez Decl. ¶ 32; Sanchez Dep. II at 17.) No other officer who participated in the protest was fired, although six were reprimanded and one probationary sergeant was demoted. (Sanchez Decl. ¶ 31; Duran Decl. ¶ 77; Gonzalez Decl. ¶ 22.)
Chief Sanchez testified that Plaintiff "didn't meet the police department's standards," because he engaged in conduct unbecoming an officer. (Sanchez Dep. I at 59.) When asked about what conduct was unbecoming, Chief Sanchez answered: "His actions of . . . carrying a weapon into a police department and causing our own city employees being fearful of our police officers." (Sanchez Dep. I at 59-60.) Chief Sanchez then engaged in the following colloquy with Plaintiffs' counsel:
Q: Did you order [Plaintiff] to return his weapon?
A: I ordered the owners of the weapons to turn in their weapons.
Q: Including Officer Gonzalez, correct?
A: I have no idea if he was the owner of a weapon or not.
Q: Assuming he was an owner of one of the weapons . . . was it just the act of him walking in the department with the weapon to turn it in that was unbecoming?
A: I think it's unbecoming when you bring to the police department any kind of--I would say--I'm not saying disturbance. I'm thinking about more like hostile, intimidation-type environment to the employees, being a police officer.
Q: I understand. But what about [Plaintiff]'s conduct was hostile?
A: Carrying an assault rifle. (Sanchez Dep. I at 60-61.) Chief Sanchez also testified that prior to the day of the protest, he had "concerns" about whether Plaintiff was an "unbecoming officer for the department." (Sanchez Dep. II at 18.) Specifically, "[t]here were some issues with some reports not being turned in on time," as well as "improper use of equipment." (Sanchez Dep II at 18.) Chief Sanchez "factor[ed] in" these prior issues when he came to the decision to terminate Plaintiff. (Sanchez Dep. II at 18-19, 50-51, 87.) Chief Sanchez also testified that "having and being properly trained with the AR-15 [can] enhance public safety." (Sanchez Dep. I at 69.)
In his Declaration, Chief Sanchez stated as follows:
20. Upon my return to the [CPD] Station th[e] day [of the protest], my assistant Martha Gomez told me about the protest and how it occurred. She told me some of the officers came into the station lobby with the weapons and accompanied by the news media. She told me the officers had demanded to see me and demanded entrance to the station. I asked Ms. Gomez to prepare a memorandum regarding the protest. . . .
21. According to the memorandum, many of the officers participating in this demonstration were openly carrying the illegal short-barreled AR-15 assault weapons which they had been ordered to turn in by the close of business that day. It also stated many of the officers were wearing black T-shirts with the letters "CLX POA" written on them, but little else to inform the public the demonstrators were Calexico police officers. Furthermore, two of the officers participating in the demonstration were wearing ski masks.
22. At my request, Ms. Gomez also prepared a list of the officers who participated in the protest. Officer Jesus Gonzalez' name was on that list. Officer Gonzalez was a probationary officer in the department. I spoke with other employees regarding the protest who ...