Roy Spears v. City of Tucson

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROY SPEARS, No. 15-16874

Plaintiff-Appellant, D.C. No. 4:14-cv-02352-CKJ

v.
MEMORANDUM *
CITY OF TUCSON; CHRISTOPHER
MAGNUS, Chief of Police; C. BURNETT,
Police Officer,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding

Submitted April 7, 2017
Pasadena, California

Before: McKEOWN and CALLAHAN, Circuit Judges, and QUIST, ** District
Judge.

Roy Spears appeals the district court’s dismissal of his 42 U.S.C. § 1983

action against the City of Tuscon (“the City”), the Tuscon Police Department Chief

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gordon J. Quist, United States District Judge for the
Western District of Michigan, sitting by designation.
of Police, and Officer Clark Burnett. We review de novo the district court’s

mootness determination, Rosebrock v. Mathis, 745 F.3d 963, 970 n.8 (9th Cir.

2014), as well as the district court’s grant of summary judgment, ACLU of Nev. v.

City of Las Vegas, 466 F.3d 784, 790 (9th Cir. 2006). We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

Spears’s claims for declaratory and injunctive relief are moot. The

voluntary cessation of challenged conduct renders a claim moot where “subsequent

events ma[k]e it absolutely clear that the allegedly wrongful behavior could not

reasonably be expected to recur.’” Rosebrock, 745 F.3d at 971 (quoting Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). As

the City explains and Spears does not dispute, the City’s policy is to enforce state

trespass laws if a trespass claim is reasonably substantiated. At the time that

Officer Burnett was called to the scene, the records reasonably available to the City

appeared to indicate that North Wyatt and East Farness Drives were privately

owned by the Tuscon Medical Center with no easements. Only a later-

commissioned survey revealed the existence of the 1977 Roadway Use Permit that

granted an easement for public use of those streets and their accompanying

sidewalks.

The City accepts the survey results and now considers the North Wyatt and

East Farness sidewalks to have the same status as any other public sidewalk in the

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City. The City also states that it will maintain this policy even if the Tuscon

Medical Center changes its view in the future. There is no evidence that the City

enforces trespass laws absent a reasonable belief that the public has no right to

access the property. Under these circumstances, it cannot “reasonably be

expected” that the City will bar Spears from protesting on these sidewalks in the

future.

Spears’s nominal damages claim fails because he cannot prove that the City

acted with deliberate indifference to his constitutional rights. Mabe v. San

Bernardino Cty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110–11 (9th Cir.

2001). Deliberate indifference is a stringent standard that is met where “the need

for more or different [action] is so obvious, and the inadequacy so likely to result

in the violation of constitutional rights, that the policymakers of the city can

reasonably be said to have been deliberately indifferent to the need.” City of

Canton v. Harris, 489 U.S. 378, 390 (1989). What happened to Spears appears to

be an unusual and isolated application of the City’s general trespass policy. In

addition, the need for a different general trespass policy was not “so obvious”

given the complex nature of First Amendment doctrine regarding the forum status

of privately owned pedestrian thoroughfares. See Venetian Casino Resort, L.L.C.

v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937, 943–45 (9th Cir. 2001).

Ultimately, even assuming a constitutional violation, Spears cannot establish that

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the City’s “deliberate policy caused the constitutional violation alleged.”

Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007).

The district court appropriately held that Officer Burnett is entitled to

qualified immunity. When the Tuscon Medical Center security requested that

Spears and the other protestors be removed, it was reasonable for Burnett to rely on

land records and confirmation from the City that North Wyatt and East Farness

Drives were privately owned. An officer is entitled to qualified immunity where

his actions did not “violate a clearly established constitutional right, where ‘clearly

established’ means that ‘it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.’” Wilkins v. City of Oakland, 350

F.3d 949, 954 (9th Cir. 2003) (citation omitted). This principle from Wilkins

applies equally to Burnett.

AFFIRMED.