Steven Blomquist v. Town of Marana , 501 F. App'x 657 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STEVEN J. BLOMQUIST and SHARYL No. 11-16215
v. CUMMINGS, husband and wife,
D.C. No. 4:09-cv-00671-DCB
Plaintiffs - Appellants,
v. MEMORANDUM *
TOWN OF MARANA, an Arizona
municipal corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted December 4, 2012
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.
Plaintiffs Steven Blomquist and Sharyl Cummings appeal from the district
court’s order granting summary judgment in favor of the Town of Marana and
several of its police officers. We have jurisdiction under 28 U.S.C. § 1291, and we
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
affirm. Because the parties are familiar with the history of this case, we need not
recount it here.
I
The district court correctly determined that Plaintiffs’ claims against the
Town of Marana (“the Town”) failed as a matter of law because they lacked a
federal constitutional right to picket on the abandoned easement site. At the time
of the events giving rise to this suit, the Town Council had abandoned any public
right or interest in the easement. Plaintiffs have not challenged that abandonment
in this case, and no court has held that the abandonment was improper. The parties
have informed us that their settlement of the separate state litigation on that
question does not involve a determination that the abandonment was illegal or
void.
Given that factual context, Plaintiffs cannot establish “general rights of free
speech on property privately owned and used nondiscriminatorily for private
purposes only.” Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 568 (1972). That
McClintock’s restaurant was generally open to members of the public legitimately
patronizing it does not entitle Plaintiffs to picket there. See id. at 569-70.
Plaintiffs’ “argument has as its major unarticulated premise the assumption that
people who want to... protest[]...have a constitutional right to do so whenever and
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however and wherever they please. That concept of constitutional law [has been]
vigorously and forthrightly rejected...” Id. at 568. See also Wright v. Incline
Village Gen. Improvement Dist., 665 F.3d 1128, 1138 (9th Cir. 2011).
Even assuming, arguendo, that the public retained some right of access in
the abandoned easement, Plaintiffs did not have an unfettered right to picket. “The
existence of a right of access to [even] public property and the standard by which
limitations upon such a right must be evaluated differ depending on the character
of the property at issue.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460
U.S. 37, 44 (1983). The record before us reflects that, at most, the easement site is
a nonpublic forum, meaning that reasonable government restrictions on the content
of speech on the site are permissible. See Wright, 665 F.3d at 1134 (quoting
Preminger v. Peake, 552 F.3d 757, 765 (9th Cir. 2008)) (“A nonpublic forum is
government property that does not ‘by tradition or designation, serve as a forum
for public communication.’”).
Because Plaintiffs lacked a federal constitutional right to picket on
McClintock’s property, the district court properly granted summary judgment.
II
The district court properly granted summary judgment in favor of the
individual defendants as to the alleged Fourth Amendment violations.
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“It is well established that ‘an arrest without probable cause violates the
Fourth Amendment and gives rise to a claim for damages under § 1983.’”
Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1076 (9th Cir. 2011) (quoting
Borunda v. Richmond, 885 F.2d 1384, 1391 (9th Cir. 1988)). Here, however, the
undisputed facts establish that Officer Bennett had probable cause to arrest
Blomquist for criminal trespass. Officer Bennett knew that Blomquist had been
removed from McClintock’s property in the past and was well aware of the
ongoing dispute between Plaintiffs, the Town, and Saguaro Ranch concerning the
easement. He was dispatched to McClintock’s in response to a call from the
restaurant manager complaining that Blomquist was on McClintock’s patio without
permission and had disrupted its guests. When he arrived at McClintock’s, Officer
Bennett found Blomquist on the patio as the manager had described. Under these
circumstances, he had probable cause to arrest Blomquist for trespass under A.R.S.
§ 13-1503(A). Cf. Blankenhorn v. City of Orange, 485 F.3d 463, 472-73 (9th Cir.
2007) (describing facts supporting probable cause to arrest for criminal trespass
under California law).
Having determined that probable cause existed to arrest Blomquist for
trespass, we need not determine whether probable cause existed for the disorderly
conduct charge. See Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004).
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III
The district court also correctly granted summary judgment on the retaliation
claims. Because Plaintiffs lacked a First Amendment right to picket or otherwise
occupy the site of the abandoned easement, they cannot establish that the
individual defendants questioned, cited, or arrested them in retaliation for the
exercise of their federal constitutional rights. See Skoog v. Cnty. of Clackamas,
469 F.3d 1221, 1231-32 (9th Cir. 2006) (stating elements of First Amendment
retaliation claim).
IV
In summary, the district court properly granted summary judgment in favor
of the Town and the individual defendants, as Plaintiffs were not engaged in
constitutionally protected speech and the officers did not violate Plaintiffs’ Fourth
Amendment rights. We need not and do not reach any other issue urged by the
parties.
AFFIRMED.
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