1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 Other defendants were either dismissed by stipulation or

by court order. 

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DIANE DUNCAN,

NO. CIV. S-04-523 LKK/PAN

Plaintiff,

v. O R D E R

STATE OF CALIFORNIA, et al.,

Defendants.

 /

Plaintiff, Diane Duncan, brought suit pursuant to 42 U.S.C.

§ 1983 against Sacramento County, the Sacramento County Sheriff’s

Department, and Sheriff Lou Blanas (“defendants”).1 Plaintiff’s

allegations stem from her detention by defendants following her

participation in a June 2003 demonstration in Sacramento,

California. Plaintiff’s amended complaint alleges six causes of

action, including state and federal claims. She seeks damages and

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 1 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

 Although defendants have moved for summary judgment on all

causes of action, they have not specifically directed attention to

the request for injunctive relief. As will become clear during the

course of this opinion, however, the crux of the suit is a

transportation plan developed by defendants in response to a

specific demonstration that has come and gone. Accordingly, there

appears to be no threat of repetition, and thus it seems clear

that the request for injunctive relief is moot.

3

 Facts are undisputed unless otherwise noted.

4

 The arrest report lists the charge as “parade violation.”

Although the arrest report lists plaintiff’s real address, her name

is listed as “Jane Doe.” In the “synopsis” section of the report,

there is a boiler plate description with blank spaces that are not

filled it. It reads as follows: “On at approx. __________________

I observed _______ in possession of/wearing a __________ during a

parade defined by the Sacramento City Code. Possession of/wearing

2

injunctive relief. 

Pending before the court are cross-motions for summary

judgment. Plaintiff moves for summary adjudication only on her 

§ 1983 claims in which she alleges that defendants interfered with

her First Amendment rights to freedom of expression and assembly,

her Fourth Amendment right to be free from wrongful detention, and

her Fourteenth Amendment right to equal protection of the laws.

Defendants move for summary judgment on all of plaintiff’s claims.2

I.

FACTS3

A. PLAINTIFF’S ARREST & RELEASE FROM CUSTODY

On June 22, 2003, at around 4:00 p.m., plaintiff was arrested

in downtown Sacramento while photographing and participating in a

demonstration concerning the United States Department of

Agriculture's International Ministerial Conference and Expo on

Agricultural Science and Technology. Pl.’s SUF 1.4 Plaintiff

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 2 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 this object during a parade is prohibited by Sacramento City Code

12.048.090.” 

3

alleges that prior to her arrest she planned to return the next day

to continue observing and participating in the demonstrations. 

Pl.’s SUF 2. 

Upon arrest, plaintiff was transported to Sacramento County's

Rio Cosumnes Correctional Center ("RCCC") and was housed in the

Sandra Larson Detention Facility. Pl.’s SUF 3 & 4. When she

arrived at RCCC, plaintiff initially refused to give her name.

Def.’s SUF 35. At around 2:00 a.m., however, plaintiff gave

officers her full name. Def.’s SUF 37 & 40. At around 5:10 a.m.,

defendants brought plaintiff and four male prisoners who had also

been arrested at the protest to a transport van waiting outside of

the RCCC. Def.’s SUF 41.

What happened next appears to be disputed. According to

plaintiff, when released from RCCC she was compelled to board the

van with the four other arrestees. Pl.’s SUF 7. It is undisputed

that after she boarded the van, plaintiff was driven to a release

site (a gas station) and she and the others were dropped off there.

Pl.’s SUF 8. Plaintiff was later picked up by a legal

representative and driven to her car, which was parked in downtown

Sacramento. She then drove home. Duncan Dep. at 61:8-18. She

avers that she was exhausted, upset and scared of going through

what she “just went through” again. Because of the experience,

plaintiff avers that she did not return to the protest the

following day. Id. 

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 3 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

 People picking up releasees check in with the security

staff, explain who they are picking up and then wait in their car

until the inmate is released. See Dep. of Milo Fitch (“Fitch

Dep.”) at 15, Ex. D of Dec. of Jeffery Schwarzchild. 

4

Plaintiff cites to the depositions of two RCCC watch

commanders. Lt. Milo Fitch testified that RCCC is a remote

facility and that normally the jail either requires that prisoners

being released arrange a ride for themselves,5

 provides money for

a taxi, or the prisoners are transported to the main jail and

released from there. See Dep. of Milo Fitch (“Fitch Dep.”) at 15,

Ex. D of Dec. of Jeffery Schwarzchild. 

A special transportation plan had been developed for the June

Ministerial protest. See §IB, Fitch Dep. at 19. Plaintiff

maintains that all protesters released from RCCC were forced onto

buses and released at predetermined sites. This assertion is

supported by deposition testimony of members of the Sheriff’s

Department. According to Captain Glenn Powell, under the

transportation plan, all protestors released from the RCCC were

boarded onto buses and dropped off at pre-designated release sites.

The protestors were not given the option of arranging for their own

rides. Dep. of Glenn Powell(“Powell Dep.”) at 26, Ex. C of Dec.

of Jeffery Schwarzchild. As Powell stated, “we opened the front

door and said everybody get on the bus. It was like going to

school.” Id. at 30.

Defendants, however, maintain that plaintiff was not compelled

to board the van. Defendants note plaintiff’s deposition, where

she admits to not remembering if the defendants told her she was

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 4 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

 Defendants never submitted page 37 of the Foster

Deposition, nor was the deposition ever lodged with the Clerk. 

Thus, it would be proper for the court to disregard the defendants’

reliance on the Foster testimony. Nonetheless, plaintiff does not

dispute that Foster did in fact make the statement. Under the

circumstances, the court will treat the fact that Foster so

testified as stipulated to.

7

 Also attached to the Transportation Plan was a flow chart

of what should happen to people arrested in the protest. The flow

5

free to leave. Similarly, plaintiff stated that she never asked

any correctional staff if she could arrange to have someone pick

her up. Dep. of Diane Duncan (“Duncan Dep.”) at 59, Ex. A of Dec.

of Jeffery Schwarzchild. Finally, Captain Tracey Foster testified

that the special plan did allow for people being released to

arrange for their own transportation. Foster Dep. at 37.6

B. THE “TRANSPORTATION OPERATION PLAN” 

Months before the protest, defendants created a

“transportation operation plan” which detailed how people arrested

at the Ministerial protests would be transported. The Sacramento

Police Department had requested defendants’ assistance as they

“anticipated several hundred arrests because of expected protest

tactics aimed at disrupting the conference.” Foster Dep. at 33.

 Among other things, the plan provided for how those arrested

would be released from RCCC. Under a section entitled “PostBooking Transportation,” the plan reads: “The Transportation

Operation will arrange for the transportation of released arrestees

to one of several pre-designated drop-off locations (refer to

Release Sites, Attachment H.).” Foster Dep. at A 343, Ex. A of

Dec. of Keith E. Nourot.7 Meanwhile, “attachment H” is an interCase 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 5 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

chart makes clear that after RCCC booking, people who were released

would be transported to “release sites.” Transportation Release

Plan, at 1, Ex. K of Dec. of Jeffery Schwarzchild. 

6

department correspondence entitled “proposed release areas.” This

memo listed five “drop-off” locations within the Sacramento area

and noted that each site had “ATM’s, telephones, and restrooms

nearby.” Foster Dep. at A 359. This memo was later revised by

Captain Foster who struck one of the sites because it was “a little

more dangerous than the others, a little rough area of town.” 

Foster Dep. at 44. She also testified that she “wanted to make

sure that no one of these areas was impacted by a large group of

protestors.” Id. at 45. 

II.

STANDARDS

Summary adjudication, or partial summary judgment “upon all

or any part of a claim,” is appropriate where there is no genuine

issue of material fact as to that portion of the claim. Lies v.

Farrell Lines, Inc., 641 F.2d 765, 769 (9th Cir. 1981) (“Rule 56

authorizes a summary adjudication that will often fall short of a

final determination, even of a single claim”) (citations omitted);

Playboy Enters., Inc. v. Welles, Inc., 78 F. Supp. 2d 1066, 1073

(S.D. Cal. 1999), aff’d in part, rev’d in part, on other grounds,

279 F.3d 796 (9th Cir. 2002); E.D. Local Rule 56-260(f). 

Summary judgment, meanwhile, is appropriate when it is

demonstrated that there exists no genuine issue as to any material

fact, and that the moving party is entitled to judgment as a matter

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 6 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

of law. Fed. R. Civ. P. 56(c); See also Adickes v. S.H. Kress &

Co., 398 U.S. 144, 157 (1970); Sicor Limited v. Cetus Corp., 51

F.3d 848, 853 (9th Cir. 1995).

Under summary judgment and summary adjudication, the moving

party,

always bears the initial responsibility of informing the

district court of the basis for its motion, and

identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it

believes demonstrate the absence of a genuine issue of

material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the

nonmoving party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may properly be made

in reliance solely on the 'pleadings, depositions, answers to

interrogatories, and admissions on file.” Id. Indeed, summary

judgment should be entered, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at

trial. See id. at 322. “[A] complete failure of proof concerning

an essential element of the nonmoving party's case necessarily

renders all other facts immaterial.” Id. In such a circumstance,

summary judgment should be granted, “so long as whatever is before

the district court demonstrates that the standard for entry of

summary judgment, as set forth in Rule 56(c), is satisfied.” Id.

at 323.

////

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 7 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

8

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288-89 (1968); Secor Limited, 51 F.3d at 853. 

In attempting to establish the existence of this factual

dispute, the opposing party may not rely upon the denials of its

pleadings, but is required to tender evidence of specific facts in

the form of affidavits, and/or admissible discovery material, in

support of its contention that the dispute exists. See Fed. R.

Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11; See also First

Nat'l Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954

(9th Cir. 1998). The opposing party must demonstrate that the fact

in contention is material, i.e., a fact that might affect the

outcome of the suit under the governing law, Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169,

Assoc. of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th

Cir. 1992) (quoting T.W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the

dispute is genuine, i.e., the evidence is such that a reasonable

jury could return a verdict for the nonmoving party, Anderson, 477

U.S. 248-49; see also Cline v. Industrial Maintenance Engineering

& Contracting Co., 200 F.3d 1223, 1228 (9th Cir. 1999).

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material issue of

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 8 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

9

fact conclusively in its favor. It is sufficient that “the claimed

factual dispute be shown to require a jury or judge to resolve the

parties' differing versions of the truth at trial.” First Nat'l

Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809 F.2d at 631.

Thus, the “purpose of summary judgment is to ‘pierce the pleadings

and to assess the proof in order to see whether there is a genuine

need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R.

Civ. P. 56(e) advisory committee's note on 1963 amendments); see

also International Union of Bricklayers & Allied Craftsman Local

Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.

1985).

In resolving the summary judgment motion, the court examines

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any. Rule

56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093

(9th Cir. 1999). The evidence of the opposing party is to be

believed, see Anderson, 477 U.S. at 255, and all reasonable

inferences that may be drawn from the facts placed before the court

must be drawn in favor of the opposing party, see Matsushita, 475

U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654,

655 (1962)(per curiam)); See also Headwaters Forest Defense v.

County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000).

Nevertheless, inferences are not drawn out of the air, and it is

the opposing party's obligation to produce a factual predicate from

which the inference may be drawn. See Richards v. Nielsen Freight

Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 9 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

8

 The court notes that plaintiff’s briefs fail to address any

of the state law claims. The court takes plaintiff’s silence as

a sign of non-opposition to defendants’ motion. Accordingly, the

court grants defendants’ motion for summary judgment as to the

state law claims. 

10

898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party

“must do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken as a

whole could not lead a rational trier of fact to find for the

nonmoving party, there is no ‘genuine issue for trial.’”

Matsushita, 475 U.S. at 587 (citation omitted).

III.

ANALYSIS

Plaintiff moves for summary adjudication as to her § 1983

claims, while defendants move for summary judgment as to all of

plaintiff’s claims.8

A. CLAIMS PURSUANT TO 42 U.S.C. § 1983

Section 1983 requires a claimant to prove that defendant,

acting under color of state law, committed an act that deprived her

of some right, privilege, or immunity protected by the Constitution

or federal law. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir.

1988). Counties and their law enforcement departments are

"persons" within the meaning of the statute. Monell v. Dep’t of

Social Services of City of New York, 436 U.S. 658, 690 (1978); Shaw

v. State of Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600,

////

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 10 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

9

 The Sheriff’s Department is a proper defendant in a § 1983

case. See Anthony v. County of Sacramento, 898 F.Supp. 1435, 1451

(E.D. Cal. 1995).

11

604 (9th Cir. 1986).9 In this regard, it is established in this

Circuit that California county sheriffs act as county officials

when they establish policies concerning the release of persons from

county jails. Thompson v. City of Los Angeles, 885 F.2d 1439, 1444

(9th Cir. 1989); Streit v. County of Los Angeles, 236 F.3d 552 (9th

Cir. 2001); Brewster v. County of Shasta, 275 F.3d 803 (9th Cir.

2001). 

Municipal entities are subject to liability where "action

pursuant to official municipal policy of some nature cause[s] a

constitutional tort." Monell, 436 U.S. at 691. A direct causal

link between departmental policy or custom and the alleged

deprivation is required. See City of Canton v. Harris, 489 U.S.

378, 385 (1989).

As noted, plaintiff asserts that the transportation plan’s

provisions governing the release of protestors from RCCC, violated

her rights under the First, Fourth and Fourteenth Amendments. 

1. First Amendment Claim

Plaintiff’s first claim asserts that the defendants deprived

her of rights guaranteed by the First Amendment to the Constitution

of the United States. Below, the court sets out the relevant

jurisprudence and then determines first, that defendants’ motion

relative to plaintiff’s facial challenge to the transportation plan

must be granted, but that a factual dispute precludes the granting

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 11 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

12

of summary judgment to either side with respect to plaintiff’s asapplied challenge. 

a. As Applied & Facial Challenge

Plaintiff challenges the release provisions of the

transportation plan both as it was applied to her and on its face.

Below, I briefly address the nature of such claims. 

A facial challenge to an ordinance can be brought against any

regulation which by its terms regulates or implicates expressive

or communicative conduct. Nunez v. City of San Diego, 114 F.3d

935, 950 (9th Cir. 1997)(citing Broadrick v. Oklahoma, 413 U.S.

601, 612-13 (1973)). A regulation is facially unconstitutional if

it is invalid in every application. N.A.A.C.P., Western Region v.

City of Richmond, 743 F.2d 1346, 1352 (9th Cir. 1984). Thus, by

its nature, a facial challenge requires consideration of

applications of the regulation to conduct of persons other than the

plaintiff.

On the other hand, “[a]n as-applied challenge does not

implicate the enforcement of the law against third parties.

Rather, a litigant may separately argue that discriminatory

enforcement of a speech restriction amounts to viewpoint

discrimination in violation of the First Amendment.” Foti v. City

of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). “A successful

as-applied challenge does not render the law itself invalid but

only the particular application of the law.” Id. The focus of an

as applied claim is the effect of the regulation on the plaintiff’s

exercise of protected rights. 

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 12 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

13

b. The Plan’s Effect on First Amendment Privileges

Not every ordinance that burdens conduct implicates the First

Amendment. Nunez, 114 F.3d at 950. It is well-established that

regulations of conduct implicate the First Amendment only if they

(1) impose a disproportionate burden on those engaged in First

Amendment activities; or (2) constitute governmental regulation of

conduct with an expressive element. Arcara v. Cloud Books, Inc.,

478 U.S. 697, 703-04 (1986).

Here, there is ample evidence that the transportation plan

constituted regulation of conduct with an expressive element,

namely public protest of the Ministerial meeting. The plan

specifically provided that the released demonstrators were to be

dropped off at pre-designated locations throughout Sacramento

county remote from the demonstration. Id. at 343. As Captain

Foster testified, the rationale behind the release provisions was

to hinder released demonstrators’ ability to return to the “scene

of the crime”, i.e. the protest area in downtown Sacramento.

Foster Dep. at 35. In sum, it is undisputed that the purpose of

disembarking released protestors at the “drop off” locations was

to create an impediment to their returning to the protest. It

follows that the plan implicated conduct protected by the First

Amendment to the Constitution since public protest of government

conduct is a traditional form of speech protected by the

constitution. Bates v. City of Little Rock, 361 U.S. 516, 522

(1960).

////

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 13 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

14

c. Facial Invalidity

 Despite the implication of First Amendment protected activity,

it does not follow that the transportation plan is facially

invalid. As noted, facial invalidity requires that the regulation

be invalid in all applications. N.A.A.C.P., Western Region, 743

F.2d at 1352. The question of facial invalidity thus reduces to

whether there are any circumstances under which the transportation

plan, despite its purpose, might be lawfully applied. It appears

to the court that, if in fact there was unlawful activity at the

demonstration site, that a particular demonstrator has been

arrested by virtue of that unlawful activity, and the defendants

had a reasonable belief that the arrestee would return to the

demonstration and engage in further unlawful activity, the

transportation policy might well be a lawful exercise of the police

power to maintain public order. I thus cannot conclude that there

are no circumstances in which the transportation policy could not

be applied lawfully. Accordingly, defendants’ motion must be

granted insofar as it challenges plaintiff’s facial challenge to

the transportation plan. 

d. As Applied

 The theoretical circumstances noted above have no

application to the plaintiff’s circumstances. Given the mass

arrests, the failure to complete the arrest report so that there

was no evidence of unlawful activity, and the lack of prosecution

of the plaintiff, there is simply no evidence that she was engaged

in criminal behavior. Accordingly, the court must conclude that

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 14 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

15

as applied to plaintiff, the release provisions of the

transportation plan were “directed narrowly and specifically at

expression or conduct commonly associated with expression.” 

Roulette v. City of Seattle, 97 F.3d 300, 305 (9th Cir. 1996). 

Having established that the transportation plan implicated

plaintiff’s First Amendment privileges, the court next applies the

traditional three-part test to determine if the policy is a

reasonable time, place and manner restriction. Under the

traditional test, the policy must be (1) content neutral; (2)

narrowly tailored to a significant government interest; and (3) 

leaves open ample alternative channels for legitimate expression.

Ward, 491 U.S. at 791. If the policy fails any one of these

requirements, it is deemed invalid. Gerritsen v. City of Los

Angeles, 994 F.2d 570, 577 (9th Cir. 1993). 

i. Content Neutral

 "The principal inquiry in determining content neutrality, in

speech cases generally and in time, place, or manner cases in

particular, is whether the government has adopted a regulation of

speech because of disagreement with the message it conveys." Ward,

491 U.S. at 791. 

Neither party has tendered any evidence to suggest that the

application of the transportation plan turned on the content of

plaintiff’s speech. Rather, it appears to have been applied to all

the arrested demonstrators. 

////

////

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 15 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

16

ii. Narrowly Tailored to a Significant

Governmental Interest

The court next addresses the question of whether the

transportation plan was narrowly tailored to serve a significant

governmental interest. For the reasons set forth below, the court

finds that defendants fail to demonstrate that the release

provisions of the transportation plan are narrowly tailored to a

significant governmental interest. 

Defendants assert that they had a significant governmental

interest in promoting safety and in responding and processing

“those protestors who, rather than engage in legitimate protected

activity, broke the law and contributed to lawlessness and

potential riots.” Def.’s Opp’n to Pl.’s Mot. for Summ. J. at

13:11-14. In her deposition, Captain Foster stated that the

defendants were planning for the worst. There was a concern that

the protests would be like those in Seattle with “thousands and

thousands of people rioting in the streets.” Foster Dep. at 34.

Foster did not want to release the demonstrators in a “location

where there could be violence and rioting.” Id. at 34:18-02. 

Foster stated that “it did not seem prudent to us to take them

right back to where they had committed those crimes to facilitate

them re-offending.” Id. at 35. 

Without doubt, these may be significant governmental

interests. The inquiry, however, demands more. Defendants must

also establish that the “the regulation promotes a substantial

governmental interest that would be achieved less effectively

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 16 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

10 In Kuba, the court found that the party imposing the

speech restriction in question failed to meet its burden of proving

that demonstrators “handing out leaflets and carrying signs on the

parking lot . . . would cause the congestion and danger to safety

[that] the [party] alleges.” Id. at 859. The court went on to

state that there was “no record of harm or safety concerns caused

by such activity.” Id. at 860.

11 The mere fact of arrest, without more, is simply 

insufficient. There is no evidence as to what plaintiff was doing

at the time of her arrest. From all that appears, plaintiff may

simply have been swept up in the mass arrests.

17

absent the regulation.” Ward, 491 U.S. at 782-783 (1989). In

other words, defendants must show that the unregulated activity in

question (here, allowing protestors to leave the RCCC under normal

release policies) endangers the government interests. See Kuba v.

1-A Agricultural Association, 387 F.3d 850, 859 (9th Cir. 2004).

As the Kuba court explained, defendants “have the burden of showing

that there is evidence supporting its proffered justification.” 

Id.10 In short, postulating significant governmental interests is

not enough. Defendants must also show that the unregulated

activity endangers these interests. 

There are two serious impediments to the making of such a

showing. First, as noted, there simply is no evidence that

plaintiff engaged in unlawful activity.11 Second, nothing suggests

that releasing plaintiff under the normal RCCC release policies at

5:30 a.m. would jeopardize safety or increase the potential for

rioting. Nothing suggests that dropping plaintiff off at remote

locations better serves the interests mentioned above as compared

to allowing plaintiff to arrange for her own ride or taking a taxi.

////

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 17 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

18

Moreover, even if defendants had provided sufficient support for

their asserted interest in maintaining safety and preventing riots,

the release provisions are not narrowly tailored. 

It is well established that "[a] statute is narrowly tailored

if it targets and eliminates no more than the exact source of the

'evil' it seeks to remedy." Frisby v. Schultz, 487 U.S. 474, 485

(1988). To be narrowly tailored, a statute "need not be the least

restrictive means of furthering [the government's] interests, but

the restriction may not burden substantially more speech than

necessary to further the interests." United States v. Baugh, 187

F.3d 1037, 1043 (9th Cir. 1999). Moreover, the tailoring of the

restraint must correspond to the purposes it serves. Menotti v.

City of Seattle, 409 F.3d 1113, 1131 (9th Cir. 2005). The court

must consider “whether the ‘fit’ between ends and means is

reasonable.” City of Cincinnati v. Discovery Network, Inc., 507

U.S. 410, 417 n. 13 (1993). 

In the case at bar, dropping off plaintiff did nothing to

promote defendants’ stated interests. Again, the court stresses

that there is no evidence that plaintiff was not simply caught up

in the mass arrests. Moreover, once plaintiff was dropped off at

the remote locations, she used quarters given to her by the RCCC

staff to call a friend or colleague for a ride back to downtown

Sacramento. 

In determining if the release provisions were narrowly

tailored, the court also considers if there are “obvious

alternatives” that are “feasible and allow substantially more

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 18 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

19

speech.” Kuba, 387 F.3d at 862 (9th Cir. 2004)

Here, the obvious alternative was the normal RCCC release

provisions. Instead of dropping plaintiff off at the remote

location, defendants could have allowed plaintiff to arrange for

her own ride or take a taxi to her car. This alternative is

clearly feasible as it is the normal RCCC policy. For this reason,

it is clear that, as applied to plaintiff, the transportation plan

was not narrowly tailored to a significant governmental interest.

Given that the court finds that defendants’ plan is not

narrowly tailored, it is unnecessary to proceed any further.

Gerritsen, 994 F.2d at 577. The court need not address the

question of whether defendants’ release plan allows for alternative

channels of communication. 

In summary, the court concludes that the transportation plan

as applied to plaintiff violates her right of free speech and

assembly if in fact it affected her exercise of her rights. As I

now explain, factual issues preclude a determination of that

question pursuant to the instant motions.

d. Causation in Fact

Of course for the transportation plan to be found to have

inhibited plaintiff’s exercise of her constitutional rights, it

must have, in fact, done so. Thus, as this Circuit has made clear,

“[m]unicipal liability is only appropriate where a plaintiff has

shown that a constitutional deprivation was directly caused by a

municipal policy.” Nadell v. Las Vegas Metropolitan Police Dept.,

268 F.3d 924, 929 (9th Cir. 2001). It is well established that “in

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 19 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

20

any case alleging municipal liability under § 1983 [there] is the

question [of] whether there is a direct causal link between a

municipal policy or custom and the alleged constitutional

deprivation.” City of Canton, 489 U.S. at 385.

Not surprisingly, the parties dispute whether a constitutional

violation was directly caused by defendants’ release policy.

Plaintiff maintains that the defendants’ release policy dissuaded

her from returning to the protest site, and this constituted an

injury to her constitutional right of free speech. Defendants, on

the other hand, argue that the release provisions did not affect

plaintiff’s decision. They maintain that the “actions of the

Highway Patrol and Police Department when they arrested her and

allegedly ‘militarized’ the streets are what deterred [plaintiff]

from returning to the USDA conference.” Defs.’ Opp’n. at 8:20-22.

For the reasons discussed herein, the resolution of plaintiff’s

First Amendment claim hinges on this factual dispute. If a factfinder determines that there was no constitutional injury, the

inquiry ends there. If, however, a fact-finder concludes that

plaintiff did suffer a constitutional injury as a result of

defendants’ actions, then, for the reasons explained above

plaintiff’s First Amendment rights were violated.

2. Fourth Amendment Claim

Before addressing the merits of plaintiff’s Fourth Amendment

claim, the court must again address the threshold factual dispute

as to whether plaintiff suffered a constitutional injury related

to the implementation of the transportation policy.

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 20 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

21

Plaintiff claims that when defendants forced her onto the bus,

defendants violated her right to be free from unreasonable seizure.

Specifically, plaintiff maintains that she was “commanded to board

a Sheriff department van . . . .” Pl.’s Mot. for Summ. J., Duncan

Dec. at 2. As noted above, the testimony of both Lt. Milo Fitch

and Captain Glenn Powell support her contention. 

The Fourth Amendment prohibits “unreasonable . . . seizures.”

U.S. Const. Amend. IV. Although the Fourth Amendment allows some

delay in the release of inmates from jails, these delays must be

reasonable. County of Riverside v. McLaughlin, 500 U.S. 44, 55

(1991). The Supreme Court offers guidance on how to analyze claims

of unreasonable delay: 

Examples of unreasonable delay are delays for the

purpose of gathering additional evidence to justify the

arrest, a delay motivated by ill will against the

arrested individual, or delay for delay's sake. In

evaluating whether the delay in a particular case is

unreasonable, however, courts must allow a substantial

degree of flexibility. Courts cannot ignore the often

unavoidable delays in transporting arrested persons from

one facility to another, handling late-night bookings

where no magistrate is readily available, obtaining the

presence of an arresting officer who may be busy

processing other suspects or securing the premises of an

arrest, and other practical realities.

County of Riverside, 500 U.S. at 56-57.

The Ninth Circuit has resisted creating a per se rule for

evaluating the reasonableness of delay. Hallstrom v. City of

Garden City, 991 F.2d 1473, 1480 (9th Cir. 1993). That said, the

Circuit has expressed concern about the practice of detaining

demonstrators. In dicta, the Circuit condemned delaying

protestors’ release from jail and remarked that “. . . while the

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 21 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

12 The court noted above the difficulty in defendant’s

reliance on this testimony. See n.6. Nonetheless, for the reason

explained there, the court will treat the testimony as having been

given. 

22

arrests were designed to end the demonstrations then occurring, the

detentions were intended to prevent future demonstrations.” 

Collins v. Jordan, 110 F.3d 1363, 1375 (9th Cir. 1996).

Defendants maintain that plaintiff was not compelled to board

the van, and that people arrested at the protest were allowed to

arrange for their own rides. Defendants’ reliance on plaintiff’s

deposition acknowledgment that she never asked any correctional

staff if she could arrange to have someone pick her up hardly

supports their contention that she was free do so. Defendants,

however, also cite to Captain Foster’s deposition in which she

states that the release provisions did allow for people being

released to arrange for their own transportation. Foster Dep. at

37.12 In light of the weight of the contrary evidence, it is not

clear to the court that the testimony raises anything but a

hypothetical, rather than genuine dispute of fact. See Anderson,

477 U.S. at 248-49; Cline, 200 F.3d. at 1228. Nonetheless, the

court recognizes that weighing the evidence is, at least initially,

for the trier of fact. Conceivably, a fact-finder might determine

that plaintiff was free to arrange her own transportation, and thus

she was not unreasonably detained and thus suffered no

constitutional injury.

 Again, it is undisputed that defendants’ transportation plan

was aimed at delaying released protestors returning to the protest

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 22 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

13 The court need not address plaintiff’s Fourteenth

Amendment claim. If plaintiff is able to show that the release

policy caused her to not return to the protest, then, for the

reasons discussed earlier, it will follow that the policy violated

plaintiff’s First Amendment rights. In the context of the

Fourteenth Amendment, there is the same threshold factual dispute,

namely, whether plaintiff can show that the defendants’ policy

dissuaded her from protesting. If the dispute is resolved in favor

of defendant, it will follow that the policy violates the First

Amendment and therefore it is not necessary to even reach the

question of whether the policy also violates the Fourteenth

Amendment. 

14 Because suit in an official capacity is actually a suit

against the entity, qualified immunity does not lie. Hallstrom v.

City of Garden City, 991 F.2d 1473, 1482 (9th Cir. 1993). 

Nonetheless, since the suit is already directed towards the entity,

suit against the Sheriff in his official capacity is redundant, and

will be dismissed on that basis. 

23

site. In that sense, the release provisions constituted “delay for

delay’s sake.” County of Riverside, 500 U.S. at 56-57. Similarly,

purposefully delaying the release of protestors does not constitute

“unavoidable delay” associated with the practical realities of

operating a busy jail. Id. For these reasons, if a fact-finder

concludes that plaintiff was unreasonably detained by being

required to board the bus and being dropped at a remote location,

she suffered a violation of her Fourth Amendment rights.13

C. DEFENDANT BLANAS’ LIABILITY

Plaintiff named Sheriff Lou Blanas as a defendant, both in his

individual and official capacity. Defendants assert that Sheriff

Blanas is entitled to qualified immunity.14

The Circuit has made clear that in the context of a § 1983

claim:

Anyone who “causes” any citizen to be subjected to a

constitutional deprivation is also liable. The requisite

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 23 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

24

causal connection can be established not only by some

kind of direct personal participation in the

deprivation, but also by setting in motion a series of

acts by others which the actor knows or reasonably

should know would cause others to inflict the

constitutional injury. 

Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). 

In the case at bar, although there was an explicit written

policy promulgated by the Sheriff’s Department, and although there

is no question that the sheriff is the final policymaker,

plaintiff tenders no evidence of the Sheriff’s involvement in

establishing the policy or even that he knew the release plan

existed. See, e.g., Board of Commissioners v. Brown, 520 U.S. 397,

(1997)(holding that the plaintiff must show a direct link between

the action or inaction of the sheriff and the constitutional

injury). To infer personal knowledge from the fact that the policy

was printed on Department letterhead, which is what plaintiff

maintains, is insufficient to establish that Blanas knew or

reasonably should have known of the specific release provisions.

For this reason, plaintiff fails to establish that Blanas is

liable. 

IV.

ORDER

For the reasons discussed herein, the court ORDERS as follows:

1. Defendants’ motion for summary judgment on plaintiff’s

facial challenge to the transportation plan is granted; 

2. Defendants’ motion for summary judgment as to plaintiff’s

state law claims is GRANTED.

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 24 of 25
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

25

3. Defendants’ motion for summary judgment as to defendant

Blanas’ liability is GRANTED.

4. Both motions for summary judgment as to the Section 1983

claims concerning the as applied First Amendment claim and the

Fourth Amendment claims are DENIED.

IT IS SO ORDERED. 

DATED: June 19, 2006.

Case 2:04-cv-00523-LKK -EFB Document 89 Filed 06/20/06 Page 25 of 25