Salvador Reza v. Russell Pearce

806 F.3d 497, 92 Fed. R. Serv. 3d 646, 2015 U.S. App. LEXIS 14470, 2015 WL 7292539
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 18, 2015
Docket13-15154
StatusPublished
Cited by43 cases

This text of 806 F.3d 497 (Salvador Reza v. Russell Pearce) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salvador Reza v. Russell Pearce, 806 F.3d 497, 92 Fed. R. Serv. 3d 646, 2015 U.S. App. LEXIS 14470, 2015 WL 7292539 (9th Cir. 2015).

Opinions

Order; Opinion by Judge MILAN D. SMITH, JR.; Partial Concurrence and Partial Dissent by Judge WALLACE.

ORDER

The panel has voted to deny the petition for panel rehearing. Judges Smith and Watford voted to deny the petition for rehearing en banc, and Judge Wallace so recommends. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on en banc rehearing. See Fed. R.App. P. 35(f). The petition for panel rehearing and the petition for rehearing en banc are DENIED. The court’s opinion and the dissent filed August 18, 2015, and appearing at 798 F.3d 881 (9th Cir.2015), are hereby amended. An amended opinion and dissent are filed herewith. No further petitions for rehearing or rehearing en banc may be filed.

OPINION

M. SMITH, Circuit Judge:

In this § 1983 action, Salvador Reza alleges that Arizona State Senator Russell Pearce violated his constitutional rights when he ordered Reza removed, and barred, from the Arizona Senate building (the Building) at the state capital. Reza contends that Senator Pearce targeted him because of his public criticism of the senator, and because of Reza’s Mexican heritage. Senator Pearce responds that he was justified in barring Reza from the Building because Reza disrupted Senate proceedings, and because he believed Reza would interrupt Senate proceedings in the future. The district court granted summary judgment to Senator Pearce on qualified immunity grounds because it concluded that Pearce had “an objectively reasonable basis ... to conclude that action needed to be taken to protect and preserve safety and decorum,” and that if Reza “was mistakenly targeted as a disruptive member of the crowd” that such a mistake could not violate the First

[500]*500Amendment. The district court assumed that if such a mistake was made, then it did not violate clearly 'established law to bar Reza from the building in the future based on a fear of future disturbances.

Reza also alleges that officers Jeff Trapp and' John Burton violated his rights under the First and Fourth Amendments by preventing Reza from entering the Building, and ultimately arresting him. Reza challenges the district court’s order granting Rule 12(b)(6) motions to dismiss his claims against Trapp and Burton on qualified immunity grounds.

Finally, Reza challenges a protective order granted by the district court that prevented him from obtaining evidence concerning Senator Pearce’s relationship with J.T. Ready, a white supremacist leader.

We reverse the district court’s decision to grant summary judgment to Senator Pearce, and remand for further proceedings consistent with this opinion. Based on our review of the record, we find several disputed issues of material fact that affect our determination of whether Senator Pearce violated Reza’s First Amendment rights. Thus, when we resolve factual disputes in favor of Reza’s version of events, as required on a motion for summary judgment, we conclude that Senator Pearce’s alleged conduct violated our circuit’s clearly established First Amendment law. We affirm the district court’s rulings regarding officers Trapp and Burton, and its protective order.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

A. The Alleged Disruption of the Arizona Senate Debate

Salvador Reza is a member of Tonatier-ra, a community development organization that seeks to protect the rights of migrant workers and their families. On February 22, 2011, Reza attended a legislative hearing at the Building concerning the Omnibus Immigration Bill, a state immigration law.

The hearing on the Omnibus Immigration Bill attracted significant public attention. Because of the number of people already in the Building when Reza and other supporters of Tonatierra arrived, he and those supporters were unable to sit in the room where the Senate hearing was held. Instead, Reza sat in an overflow room, where people could view a broadcast of the Senate hearing proceedings. Both opponents and supporters of the proposed legislation applauded and booed in the overflow room during the course of the hearing.

Senator Pearce claims that, near the end of the day’s proceedings, noise from the overflow room began to interfere with legislative debate. At this time, Officer John Burton approached Reza and asked him to try to silence the audience. Reza refused to do so and, when the officer said he might have to detain some protestors if they kept loudly clapping, Reza allegedly said “do what you have to do.” In his deposition, Officer Burton states that Reza was confrontational and challenged the officer by saying, “Go ahead, throw me out.”

Around 10:00 pm, Sergeant-ab-Arms Joe Kubaeki entered the overflow room and told the crowd to stop applauding, because the noise was violating the Senate’s rules of decorum. In his deposition, he states that some members of the audience, including Reza, started applauding even louder.

Kubaeki reported this incident to Senator Pearce. Senator Pearce was the president of the Senate at that time, and had authority to maintain decorum for the Senate. In his affidavit, Senator Pearce [501]*501claims that, in the aftermath of a recent shooting at an event held by Congresswoman Gabrielle Giffords, public officials were “on edge” and “nervous,” and were particularly concerned about potential violence at protests. Earlier that day, police had arrested four protestors at a press conference held by State Senator Krysten Sinema. When Senator Pearce asked Ku-backi how to handle the protestors in the overflow room, Kubacki apparently advised that, since the legislative hearing appeared to be concluding, it would be better to try to limit disturbances in the short term and not arrest any protestors or attempt to remove them from the Building.

Senator Steve Gallardo, who attended the Omnibus Immigration Bill hearing, submitted an affidavit stating that: “I never saw Mr. Reza engage in any disruptive behavior at the Arizona State Senate on February 22, 2011 or at any other time ... Nor did I ever observe anyone either disrupt or interrupt the public hearing before the Appropriations Committee on February 22, 2011.” Others attending the hearing have supported Senator Gallardo’s affidavit. For instance, Jason Odhner, an individual who was seated in the overflow room during the hearing, testified that, “[djuring the entire time that I was at the Senate building on that occasion, I never saw Mr. Reza engage in any type of disruptive or disrespectful behavior.”

B.Senator Pearce’s Ban of Salvador Reza

After the Omnibus Immigration Bill hearing concluded, Senator Pearce approached Officer Jeff Trapp and asked him to identify those who had been protesting loudly in the overflow room. Senator Pearce directed Officer Trapp to deny entrance into the Building to those he identified, due to their disorderly and disruptive behavior. The officers identified Reza as one of the individuals who had disrupted the Senate hearing, and therefore planned to bar Reza from entering the Building.

C. Reza’s Arrest

On February 24, 2011, Reza tried to enter the Building for the purpose of meeting with Senator Gallardo to discuss obtaining a permit for future protests.

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806 F.3d 497, 92 Fed. R. Serv. 3d 646, 2015 U.S. App. LEXIS 14470, 2015 WL 7292539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salvador-reza-v-russell-pearce-ca9-2015.