1 david loy (229235) sean riordan (255752)...2012/05/22 · complaint 1 david loy (229235) 2 3 4...
TRANSCRIPT
COMPLAINT
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David Loy (229235) Sean Riordan (255752) Lori Shellenberger (154696) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 Telephone: (619) 232-2121 Facsimile: (619) 232-0036 [email protected] Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MATTHEW BOLOGNA, JAKE WORTS, Plaintiffs, v. CITY OF ESCONDIDO; OFFICER ALVA; OFFICER STUARD; OFFICER NELSON; JOSEPH A. FARROW, COMMISSIONER OF CALIFORNIA HIGHWAY PATROL; OFFICER MELLO; JOHN DOES 1-3, Defendants.
Case No.:
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES JURY TRIAL DEMANDED
1. First Amendment violation by Officer Alva
2. First Amendment violation by CHP officers
3. First Amendment violation by Officers Stuard and Nelson
4. First Amendment violations by City of Escondido
Plaintiffs Matthew Bologna and Jake Worts bring this First Amendment case against the
City of Escondido, two Escondido police officers, the Commissioner of the California Highway
Patrol (CHP), and several CHP officers, and allege as follows.
INTRODUCTION AND NATURE OF THE ACTION
1. This case defends the fundamental right to engage in political speech in a public
forum. The City of Escondido has a policy and practice of operating traffic checkpoints in
which drivers are stopped without any suspicion of wrongdoing. Plaintiffs oppose that policy
and practice. Plaintiffs use public sidewalks to protest and monitor the checkpoints.
'12CV1243 WVGJAH
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2. Defendants have violated Plaintiffs’ First Amendment rights by compelling them
to relocate their protests and preventing them from videotaping checkpoint operations.
3. Plaintiffs seek declaratory and injunctive relief as well as damages to remedy
these violations of their First Amendment rights.
JURISDICTION AND VENUE
4. The Court has jurisdiction under 28 U.S.C. § 1331 because this action arises
under the First Amendment to the United States Constitution and 42 U.S.C. § 1983.
5. The Court may award damages and grant declaratory and injunctive relief for
constitutional violations pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 2201, and/or Federal Rules
of Civil Procedure 57 and 65.
6. Venue is proper in this district under 28 U.S.C. § 1391(b) because the events that
give rise to this action occurred within this district.
7. The Court has personal jurisdiction over Defendants, all of whom, on
information and belief, are residents of the state of California.
PARTIES
8. Plaintiffs Matthew Bologna and Jake Worts are and at all relevant times were
citizens of California residing in San Diego County.
9. The City of Escondido (City) is a duly organized and existing municipality under
California law, located in San Diego County, California.
10. Officers Alva, Stuard, and Nelson are police officers employed by the City of
Escondido. Their first names are unknown to Plaintiffs, who reserve the right to amend this
complaint to further identify them when such information becomes available through discovery
or otherwise.
11. Defendant Joseph A. Farrow is Commissioner of the California Highway Patrol.
12. The CHP commissioner “shall perform all duties, exercise all powers and
jurisdiction, assume and discharge all responsibilities, and carry out and effect all purposes
vested by law in the department.” Cal. Veh. Code § 2108. In particular, the “commissioner
shall enforce all laws regulating the operation of vehicles and the use of the highways,” Cal.
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Veh. Code § 2400(b), and “make adequate provision for patrol of the highways at all times of
the day and night.” Cal. Veh. Code § 2401. The commissioner is thus ultimately responsible
for CHP’s enforcement actions.
13. Under California law, a “highway” is “way or place of whatever nature, publicly
maintained and open to the use of the public for purposes of vehicular travel. Highway includes
street.” Cal. Veh. Code § 360. “All members of the California Highway Patrol have the powers
of a peace officer.” Cal. Veh. Code § 2409. As such, the authority of CHP officers “extends to
any place in the state.” Cal. Penal Code § 830.2.
14. Officer Mello is a CHP officer whose first name is unknown to Plaintiffs.
Plaintiffs reserve the right to amend this complaint to further identify Mello when such
information becomes available through discovery or otherwise.
15. The true names of Defendants John Does 1-3 are unknown to Plaintiffs, who
therefore sue said Defendants by said fictitious names. Plaintiffs will amend this complaint to
show said Defendants’ true names and capacities when the same have been ascertained.
16. In taking the actions described in this Complaint, all Defendants acted and
continue to act under color of law.
17. All Defendants are sued in their official capacities for declaratory and injunctive
relief. Alva, Mello, Does 1-3, Stuard, Nelson, and the City are also sued for damages.
FACTUAL ALLEGATIONS
18. The Escondido Police Department (EPD) has a policy and practice of conducting
periodic traffic checkpoints within the City. At such checkpoints, EPD officers routinely stop
motor vehicles without any suspicion of wrongdoing.
19. Plaintiffs oppose the City’s policy and practice of conducting such checkpoints.
They regularly engage in protests against that policy and practice.
20. In protesting the checkpoints, Plaintiffs stand on sidewalks near the checkpoints
while holding signs with messages opposed to the checkpoints.
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21. The location of their protests near the checkpoints while they are in operation is
integral to Plaintiffs’ message, to ensure that the message has maximum impact on the drivers
most personally affected by the checkpoints.
22. From time to time, Plaintiffs also videotape the operation of checkpoints and/or
protests of the checkpoints.
23. While protesting and/or videotaping the checkpoints, Plaintiffs are not engaged
in any form of commercial speech or activity. Their protests and/or videotaping are for political
or other non-commercial purposes.
24. Including but not limited to the checkpoints described in this Complaint, EPD
has conducted and will continue to conduct regular traffic checkpoints on highways and streets
patrolled by EPD and/or CHP.
A. EPD Misuses the Vehicle Code to Interfere with Plaintiffs’ Speech.
25. On or about January 1, 2011, EPD set up a checkpoint near the corner of Spruce
Street and Grand Avenue in the City of Escondido.
26. Plaintiffs protested the checkpoint policy and practice by peacefully standing on
a public sidewalk along Valley Parkway and holding signs with messages opposed to
checkpoints.
27. As they were protesting, EPD Officer Alva approached them. Alva told them
they could not protest at that location because California Vehicle Code section 22520.5
prohibits protests within 500 feet of a freeway off ramp.
28. Alva ordered Plaintiffs to relocate their protest. Because he was a law
enforcement officer, Plaintiffs obeyed his command.
29. Section 22520.5(a) states, “No person shall solicit, display, sell, offer for sale, or
otherwise vend or attempt to vend any merchandise or service while being wholly or partly
within … any sidewalk within 500 feet of a freeway off ramp or on ramp, when vending or
attempting to vend to vehicular traffic.”
30. On or about January 20, 2011, the ACLU Foundation of San Diego & Imperial
Counties (ACLU-SDIC) sent a letter to the Escondido police chief explaining that section
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22520.5(a) does not apply to political speech and noting the First Amendment problems raised
by interfering with peaceful protests of the checkpoints. The letter asked the police chief “to
allow the checkpoint protesters to conduct future demonstrations on public sidewalks without
interference from the EPD.”
B. CHP Misuses the Vehicle Code to Interfere with Plaintiffs’ Speech.
31. On or about May 20, 2011, EPD set up a checkpoint on East Lincoln near the
intersection of North Broadway and East Lincoln Parkway, which becomes State Route 78
when it crosses Broadway to the west (the “Broadway/Lincoln Intersection”). On that day,
Plaintiffs went to the Broadway/Lincoln intersection to protest the EPD checkpoint.
32. Holding signs that condemned the checkpoints, Plaintiffs were standing on a strip
of grass just west of the Broadway/Lincoln intersection when they were approached by two
unidentified CHP officers (Does 1 and 2), along with an EPD officer. Does 1 and 2 instructed
Plaintiffs to move off the grass and to a sidewalk further to the east. Plaintiffs complied.
33. As Plaintiffs were displaying their signs while standing on a public sidewalk at
the southwest corner of the Broadway/Lincoln intersection, CHP Officer Mello approached
them. He told them they could not conduct their protest on the sidewalk where they were
standing because California Vehicle Code section 22520.5 prohibits protests or holding signs
within 500 feet of a freeway off ramp.
34. Mello and/or Does 1-3 then ordered Plaintiffs to relocate their protest from the
public sidewalk at the southwest corner of the Broadway/Lincoln intersection. Because they
were law enforcement officers, Plaintiffs obeyed the command.
35. The actions of CHP officers in restricting Plaintiffs’ right to protest a checkpoint
from a public sidewalk mirror similar previous actions by EPD officers.
C. CHP Refuses to Clarify Its Vague Standard for Interfering with Speech.
36. Following the May 20, 2011 incident, ACLU-SDIC sent a letter to CHP’s Office
of Legal Affairs. The letter, dated May 26, 2011, explained that the CHP actions described in
this complaint violated the First Amendment and asked CHP to refrain from interfering with
future demonstrations on public sidewalks.
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37. By letter dated June 2, 2011, CHP wrote, “Although the officer cited to Vehicle
Code section 22520.5 as his legal justification for requesting the protestors move from the
bottom of the freeway onramp, his concern, which may not have been clearly articulated, was
driver safety, as he believed passing traffic was being distracted by the protest signs.”
38. On July 5, 2011, ACLU-SDIC wrote to CHP regarding the May 20 incident and
CHP’s response. In that letter, ACLU-SDIC again explained that CHP officers violated the
First Amendment and expressed its concern that CHP appeared to regard the officers’ conduct
as “appropriate and legal.” ACLU-SDIC asked CHP to “instruct CHP officers that checkpoint
protestors are allowed to conduct future demonstrations on public sidewalks, including at the
intersection of Highway 78/Lincoln and Broadway.”
39. CHP responded by letter dated July 6, 2011. In that letter, CHP stated, “area
officers have been advised that checkpoint protestors are allowed to conduct demonstrations on
public sidewalks … just as long as the protestors do not create a traffic or public safety hazard
to others or themselves.”
40. By letter dated July 14, 2011, ACLU-SDIC asked CHP to clarify the term “create
a traffic or public safety hazard to others or themselves.” As ACLU-SDIC explained:
[T]here are conceivable circumstances where protesters could create a genuine traffic or public safety hazard, such as if a protester steps off the sidewalk into the road or holds a sign out into the path of oncoming traffic. But so long as protesters are confining their activities to the public sidewalk rather than the road, I do not see how they could be creating a traffic or public safety hazard sufficient to overcome their First Amendment rights…. [A] general claim of driver safety or distraction is inadequate to prohibit First Amendment activities. The fact that some drivers may be distracted by seeing protesters lawfully demonstrating on a public sidewalk is an insufficient justification for forcing the protesters to move.
41. By letter dated July 22, 2011, CHP stated “we cannot issue a clarification as you
requested.” According to CHP’s letter, the term “create a traffic or public safety hazard to
themselves or others” is “vague.”
42. EPD continues to conduct traffic checkpoints on a regular basis. Plaintiffs
continue to protest the checkpoints and intend to protest future checkpoints in the same manner.
As Mr. Bologna recently stated in the press, “I absolutely will continue to protest these open
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displays of tyranny. I believe in freedom and that does not involve being stopped for no reason
and asked to present papers.”
43. Since May 20, 2011, Plaintiffs have seen CHP officers patrolling near
checkpoints where they have conducted protests. Because CHP has reserved the authority to
restrict political speech on a public sidewalk under a “standard” it admits is “vague,” Plaintiffs
reasonably fear that CHP will again restrict their First Amendment right to protest checkpoints
operated by EPD.
D. EPD Prevents Mr. Bologna from Videotaping a Checkpoint.
44. On or about April 24, 2012, during daylight hours at approximately 11:00 a.m.,
EPD operated a traffic checkpoint on El Norte Parkway between Kaile Lane and a flood control
channel 500 feet east of Kaile Lane.
45. At that location, El Norte Parkway consists of two wide traffic lanes running east
and west, bounded by public sidewalks on both sides, and is approximately 70 feet wide.
46. EPD operated the checkpoint by closing the westbound lane and diverting
westbound traffic into a portion of the eastbound lane, as marked off by orange traffic cones.
EPD officers then stopped westbound vehicles in the checkpoint.
47. Mr. Bologna began videotaping the checkpoint while walking along the sidewalk
on the north side of El Norte Parkway, on the opposite side of the street from where the
checkpoint was in operation.
48. While videotaping the checkpoint operation, Mr. Bologna remained peacefully
on the sidewalk, at least 25 feet from the checkpoint itself.
49. While Mr. Bologna was videotaping the checkpoint, Officers Stuard and Nelson
crossed the street and approached him.
50. Officer Stuard told Mr. Bologna, “We have a policy not to have you in our
operational area for officer safety reasons,” and ordered him to move away.
51. Officer Nelson directed Mr. Bologna to move either to “the far side of the flood
control channel” or “the other end of the light” at the intersection of El Norte and Kaile Lane
and not “to traverse back and forth” between those points.
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52. Because Stuard and Nelson were law enforcement officers, Mr. Bologna obeyed
their command. As a result, he was prohibited from peacefully videotaping the operation of the
checkpoint from anywhere on the sidewalk adjoining El Norte Parkway between the traffic light
at Kaile Lane and east side of the flood control channel, a distance of over 500 feet.
53. The actions of Stuard and Nelson materially impaired Mr. Bologna’s ability to
videotape the checkpoint and prevented him from making an effective record of its operation.
E. Damages and Need for Declaratory and Injunctive Relief
54. The actions of Alva, Mello, Does 1-3, Stuard, and/or Nelson have chilled,
deterred, and infringed Plaintiffs’ right to engage in protected speech, resulting in harm to
Plaintiffs and entitling them to damages in an amount to be proven at trial.
55. The policies, customs, and/or practices of the City of Escondido have caused
City officers to chill, deter, and infringe Plaintiffs’ right to engage in protected speech, resulting
in harm to Plaintiffs and entitling them to damages against the City in an amount to be proven at
trial.
56. The acts, omissions, policies, customs, and/or practices of all Defendants are
causing irreparable harm to Plaintiffs due to interference with their First Amendment rights to
protest and/or record checkpoints from public sidewalks, for which they have no adequate
remedy at law.
57. An actual controversy has arisen and now exists between Plaintiffs and
Defendants regarding Plaintiffs’ ability to exercise First Amendment rights to protest and/or
record vehicle checkpoints from public sidewalks in the City of Escondido.
FIRST CLAIM
VIOLATION OF 42 U.S.C. § 1983 (Freedom of Speech) (Against Officer Alva)
58. Plaintiff incorporates by reference the allegations of paragraphs 1 to 57 above, as
though set forth fully herein.
59. By interfering with Plaintiffs’ right to protest a traffic checkpoint from a public
sidewalk on or about January 1, 2011, EPD Officer Alva violated their First Amendment right to
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engage in political speech in a public forum, as applied to state and local officials under the
Fourteenth Amendment.
60. Alva’s actions continue to chill, deter, and infringe Plaintiffs’ First Amendment
right to engage in speech in a public forum.
SECOND CLAIM
VIOLATION OF 42 U.S.C. § 1983 (Freedom of Speech) (Against Commissioner Farrow, Officer Mello and/or Does 1-3)
61. Plaintiff incorporates by reference the allegations of paragraphs 1 to 57 above, as
though set forth fully herein.
62. By interfering with Plaintiffs’ right to protest a traffic checkpoint from a public
sidewalk on or about May 20, 2011, CHP Officers Mello and/or Does 1-3 violated Plaintiffs’
First Amendment right to engage in political speech in a public forum, as applied to state and
local officials under the Fourteenth Amendment.
63. The actions, customs, policies, practices, and/or statements of CHP officers or
employees continue to chill, deter, and infringe Plaintiffs’ First Amendment right to engage in
speech in a public forum.
THIRD CLAIM
VIOLATION OF 42 U.S.C. § 1983 (Freedom of Speech) (Against Officers Stuard and Nelson)
64. Plaintiff incorporates by reference the allegations of paragraphs 1 to 57 above, as
though set forth fully herein.
65. By interfering with Mr. Bologna’s ability to videotape a traffic checkpoint from a
public sidewalk on or about April 24, 2012, EPD Officers Stuard and Nelson violated Mr.
Bologna’s First Amendment right to videotape police operations, as applied to state and local
officials under the Fourteenth Amendment.
66. The actions of Stuard and/or Nelson continue to chill, deter, and infringe
Plaintiffs’ First Amendment right to videotape police operations in public.
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FOURTH CLAIM
VIOLATION OF 42 U.S.C. § 1983 (Freedom of Speech) (Against City of Escondido)
67. Plaintiff incorporates by reference the allegations of paragraphs 1 to 57, 59-60,
and 65-66 above, as though set forth fully herein.
68. In violating Plaintiffs’ First Amendment rights, Officers Alva, Stuard, and/or
Nelson acted pursuant to expressly adopted official policy and/or longstanding custom and
practice of the City of Escondido to prevent, restrict and/or hinder the ability of persons such as
Plaintiffs to protest, record, demonstrate, or otherwise speak out against vehicle checkpoints
from public sidewalks in the City of Escondido.
69. The City’s training policies and practices were not adequate to train its police
officers to handle the usual and recurring situation of protests and/or videotaping of vehicle
checkpoints. The City was deliberately indifferent to the obvious consequences of its failure to
train police officers adequately on respecting the First Amendment rights of individuals to
protest and/or record checkpoints. The City’s failure to provide adequate training on that issue
caused Alva, Stuard, and/or Nelson to deprive Plaintiffs of First Amendment rights.
70. The City’s policy, custom, practice, and/or deliberate indifference continues to
chill, deter, and infringe Plaintiffs’ First Amendment right to engage in speech and/or videotape
police operations in a public forum.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request the Court to enter judgment against
Defendants as follows:
1. Awarding general, compensatory, statutory, nominal, and/or punitive damages
against Alva, Mello, Does 1-3, Stuard, and/or Nelson, in an amount to be proven at trial;
2. Awarding general, compensatory, statutory, and/or nominal damages against the
City of Escondido, in an amount to be proven at trial;
3. Preliminarily and permanently enjoining all Defendants, their successors, agents,
servants and employees, and anyone acting in concert with Defendants, from preventing,
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impeding, or otherwise interfering with Plaintiffs’ First Amendment rights to protest and/or
record checkpoints from public sidewalks or other similar public places;
4. Declaring Defendants’ conduct to be unlawful;
5. Awarding Plaintiff costs and attorney fees as authorized by Fed. R. Civ. P. 54, 42
U.S.C. § 1988, and/or any other applicable law;
6. Awarding other such relief as the Court deems proper.
JURY DEMAND
Plaintiff hereby demands a trial by jury for all issues so triable.
Dated: May 22, 2012 Respectfully submitted,
By: s/David Loy
David Loy
Attorney for Plaintiffs
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