FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE VILLEGAS; BOB POELKER; 

MARCELO ORTA; DON DEROSIERS,

Plaintiffs-Appellants, No. 05-15725

v. D.C. No. 

GILROY GARLIC FESTIVAL CV-01-20720-JW

ASSOCIATION; D. BERGMAN, Officer; OPINION

CITY OF GILROY,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

James Ware, District Judge, Presiding

Argued and Submitted

December 11, 2007—Pasadena, California

Filed September 3, 2008

Before: Alex Kozinski, Chief Judge,

Diarmuid F. O’Scannlain, Pamela Ann Rymer,

Sidney R. Thomas, M. Margaret McKeown,

Kim McLane Wardlaw, Raymond C. Fisher,

Ronald M. Gould, Richard A. Paez, Consuelo M. Callahan,

and N. Randy Smith, Circuit Judges.

Opinion by Judge O’Scannlain;

Dissent by Judge Thomas;

Dissent by Judge Gould

12057
COUNSEL

Randolph M. Hammock, Law Offices of Richard M. Lester,

Canoga Park, California, argued the cause for the plaintiffsappellants; Allen Lichtenstein, General Counsel and Lee

Rowland, Staff Attorney, ACLU, Las Vegas, Nevada, were

on the briefs. 

Bronwen Lacy, Strombotne Law Firm, San Jose, California,

and Gregory C. Simonian, Clapp Moroney Bellagamba and

Vucinich, Daly City, California, argued the cause for the

defendants-appellees; Mark Strombotne, Strombotne Law

Firm, San Jose, California, G. Martin Velez, Clapp Moroney

Bellagamba and Vucinich, Daly City, California, and Valerie

S. Higgins, Clapp Moroney Bellagamba and Vucinich, San

Bruno, California, were on the briefs. 

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether guests at the Gilroy Garlic Festival can hold the City of Gilroy in California and the Gilroy

Garlic Festival Association liable in a civil rights action when

they are escorted from the event by a City police officer for

violating the Festival’s dress code.

I

George Villegas and remaining plaintiffs (hereinafter “Top

VILLEGAS v. GILROY GARLIC FESTIVAL 12061
Hatters”), all of whom are members of the Top Hatters

Motorcycle Club, brought suit against the City of Gilroy and

the Gilroy Garlic Festival Association (“GGFA”) under 42

U.S.C. § 1983 for alleged violations of their civil rights arising out of events occurring at the Gilroy Garlic Festival on

July 30, 2000. On that occasion they were wearing vests that

included an image of a skull with wings and a top hat with the

words “Top Hatters” above the top hat and the word “Hollister” written below.1

 Pursuant to an unwritten policy of the

GGFA that prohibited guests from wearing “gang colors or

other demonstrative insignia, including motorcycle club insignia,” the Festival’s chair of security, an off-duty police officer, requested an on-duty police officer to remove the Top

Hatters and this litigation ensued. 

The district court granted summary judgment in favor of

both the City of Gilroy and the GGFA, ruling that wearing

such vests was neither expressive conduct nor expressive

association within the protection of the First Amendment and

that in any event the GGFA was not a state actor within the

meaning of section 1983. Villegas v. City of Gilroy, 363 F.

Supp. 2d 1207, 1208-09, 1211, 1217-19 (N.D. Cal. 2005). 

On the Top Hatters’ appeal, a three-judge panel affirmed,

holding that the motorcycle club insignia was subject to

expressive conduct analysis but that there was no First

Amendment violation; it failed to reach the state action issue.

See Villegas v. City of Gilroy, 484 F.3d 1136, 1140 (9th Cir.),

withdrawn, 503 F.3d 974 (9th Cir. 2007). 

Thereafter, a majority of the circuit judges in active service

ordered that this case be heard en banc pursuant to Rule 35(a)

1The Top Hatters attended the Gilroy Garlic Festival to celebrate member Bob Poelker’s birthday sporting their Top Hatters Motorcycle Club

vests. These vests are made of either blue denim or black leather, and are

adorned with various patches and pins that indicate membership in the

Top Hatters. 

12062 VILLEGAS v. GILROY GARLIC FESTIVAL
of the Federal Rules of Appellate Procedure. Villegas, 503

F.3d at 974. 

II

Before dealing with the Top Hatters’ contentions, a more

detailed recital of the uncontroverted facts offered in support

of summary judgment is appropriate.

Once a year, for a few days in the summer, GGFA, a private non-profit corporation, sponsors and runs the Gilroy Garlic Festival. The Festival offers food, contests, music, and

family recreation activities—with an emphasis on garlic—in

a family-friendly environment. Such attractions include the

Great Garlic Cook-Off cooking contest and Gourmet Alley,

where garlic-laced calarmari and scampi, garlic chicken stir

fry, garlic sausage sandwiches, and garlic bread are served.

Magicians, dance troupes, puppets and jugglers offer entertainment geared toward children in a special area. 

The Festival at issue was held in Christmas Hill Park, a

public park in the City of Gilroy, from July 28 to July 30,

2000. In order to secure this venue, GGFA entered into a

facility reservation contract with the City. Under the terms of

this agreement, GGFA was required to “understand and agree

that security and traffic control may be required by the Gilroy

Police Department.” 

GGFA itself has a chair of security and an assistant chair

of security, who are unpaid volunteers, one of whom is usually a law enforcement officer with the City of Gilroy Police

Department or another local law enforcement agency. At the

conclusion of the Festival, the City of Gilroy Police Department typically submits a bill to GGFA for expenses incurred

in providing its law enforcement officers to staff the Festival.

GGFA had an informal dress code in place; however, as the

Top Hatters point out, at the time of the incident, there was

VILLEGAS v. GILROY GARLIC FESTIVAL 12063
no written policy in existence, nor was there one posted.

According to the alleged dress code, persons wearing clothing

with gang colors or insignia were allowed to remain at the

Festival only if they removed such clothing. Individuals refusing to remove clothing with gang colors or insignia were not

permitted to remain at the Festival. Such policy was adopted

as a response to an increase in gang-related violence at the

Festival in prior years which had negatively impacted attendance. The dress code was not applied to the area outside the

Festival. 

As the Top Hatters entered the Festival sporting their vests,

off-duty Gilroy Police Sergeant Donald Kludt, GGFA’s chair

of security, dressed in plain clothes, spotted them, contacted

Gilroy Police Officer Brenda Bergman, and requested that she

escort the Top Hatters back to the gate. Officer Bergman was

armed and uniformed and assigned to Festival security. In his

deposition, Sergeant Kludt explained why he contacted Officer Bergman for assistance: 

Q: Was it the fact that she [Officer Bergman] was an

armed uniformed officer, was that part of your

thought process in wanting her to be with you?

A: Yeah.

Q: Because you were not armed; correct?

A: Correct.

Q: And you were not uniformed; correct?

A: Correct.

Q: And you wanted Officer Bergman to assist you

because she would give some air of authority as a

police officer; correct?

12064 VILLEGAS v. GILROY GARLIC FESTIVAL
[Objection]

Q: Would that be a fair statement?

A: Yes. 

Officer Bergman duly approached the Top Hatters and

requested that they follow her to the gate and they complied.

Once they arrived there, Sergeant Kludt explained GGFA’s

dress code policy to them: “I told them that if they refused to

remove their [gang] colors and enjoy the festival that we will

ask them to leave and then we will refund their money, their

entry fee into the festival.” The Top Hatters, however,

felt that this was not right, that they had their rights

to wear their vests where they wanted to and this was

not right. And I [Sergeant Kludt] told them: Well, I

have a policy and I’m enforcing this policy and I’m

asking you to leave if you’re choosing not to, you

know, come into the festival without your colors. 

So they left. And then I walked around with them,

went to the ticket booth and ordered those people to

refund these people their money.

Q: Where was Officer Bergman at the time?

A: Standing next to me. 

The Top Hatters challenge on appeal the district court’s

grant of summary judgment, asserting that there were genuine

issues of material fact as to whether GGFA was a state actor

and whether the Top Hatters were engaged in protected

expressive conduct or expressive association. The Top Hatters

also assert that the City was liable for enforcing an unconstitutional dress code which it had impliedly adopted.

VILLEGAS v. GILROY GARLIC FESTIVAL 12065
III

[1] Under familiar principles, even a private entity can, in

certain circumstances, be subject to liability under section

1983. See Sutton v. Providence St. Joseph Medical Ctr., 192

F.3d 826, 835-36 (9th Cir. 1999). In Lugar v. Edmondson Oil

Co., 457 U.S. 922 (1982), the Supreme Court created a two

step analysis for determining whether or not there was state

action by a private actor sufficient to establish liability for a

constitutional tort. The first inquiry was “whether the claimed

deprivation has resulted from the exercise of a right or privilege having its source in state authority.” Id. at 939. The second was “whether, under the facts of this case, . . . [the]

private parties, may be appropriately characterized as ‘state

actors.’ ” Id. In Brentwood Academy v. Tennessee Secondary

School Athletic Association, 531 U.S. 288 (2001), the Court

introduced a multi-factored test. Id. at 295-300. The inquiry

is a general one: “[S]tate action may be found if, though only

if, there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly

treated as that of the State itself.’ ” Id. at 295 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).

Some of the factors to consider in determining whether there

is a “close nexus” are: (1) the organization is mostly comprised of state institutions; (2) state officials dominate decision making of the organization; (3) the organization’s funds

are largely generated by the state institutions; and (4) the

organization is acting in lieu of a traditional state actor. See

id. at 295-99. 

The Top Hatters argue that there is a sufficiently “close

nexus” between the GGFA and the City of Gilroy and point

to the following facts in support of its contention:

1. The festival is held in a public park, owned by

the City of Gilroy; 

2. The City of Gilroy issued a written permit to the

GGFA which is signed by all of the city council

12066 VILLEGAS v. GILROY GARLIC FESTIVAL
members, and which requires, in part, that the City

of Gilroy provide some of its police officers as

security for the festival; 

3. The City of Gilroy submits a bill to the GGFA

for the use of its police officers; 

4. The “chair of security” for the GGFA is typically a police officer with the City of Gilroy Police

Department; 

5. At the time of the incident, this “chair of security” for the GGFA was Sergeant Kludt, an active

member of the City of Gilroy Police Department;

and 

6. Sergeant Kludt utilized the command post of the

Gilroy Police Department at the festival grounds. 

We are not persuaded. The Fourth Circuit’s opinion in

United Auto Workers v. Gaston Festivals, Inc., 43 F.3d 902

(4th Cir. 1995), is instructive. In Gaston, the UAW was

denied a booth at a festival run by Gaston Festivals, Inc., “a

private, non-profit corporation that organizes and promotes

the Fish Camp Jam, an annual festival held in downtown Gastonia, North Carolina.” Id. at 904. The festival was “held on

public streets and sidewalks and on private property in Gastonia’s downtown area.” Id. Just like GGFA, Gaston had to “obtain a permit in order to use the public property during the

festival . . . . In addition to approving the permit, the City provide[d] police protection, traffic department assistance, and

sanitation services during the . . . event.” Id. In addition, the

City actually donated $10,000 to the Fish Camp Jam. Id. at

904-05. 

The court in Gaston determined that “[t]he organization,

management, and promotion of events such as the [festival]

do not fall within the domain of functions exercised traditionVILLEGAS v. GILROY GARLIC FESTIVAL 12067
ally and exclusively by the government.” Id. at 907-08. Additionally, the court noted that “[t]he Supreme Court has

expressed doubts that, as a general matter, ‘the operation of

a park for recreational purposes is an exclusively public function,’ particularly in light of ‘the experience of several American entrepreneurs who amassed great fortunes by operating

parks for recreational purposes.’ ”

2

Id. at 908 (quoting Flagg

Bros., Inc. v. Brooks, 436 U.S. 149, 159 n.8 (1978) and citing

NCAA v. Tarkanian, 488 U.S. 179, 197-98 n.18 (1988) (holding that the coordination of amateur sports is “by no means

. . . a traditional, let alone an exclusive, state function”)). 

The UAW also made the argument that Gaston Festivals

was a state actor because the City had given control of its

town center to the festival, which the court rejected because

it determined that to find state action, “[a] private actor must

assume plenary control and complete governmental power

over the property in question.” Id. at 909 (citing Marsh v. Alabama, 326 U.S. 501, 506 (1946); Hudgens v. NLRB, 424 U.S.

507, 519 (1976)). The court noted that while the City required

a permit and provided essential services such as security to

support the festival, the City did not thereby relinquish control

of the public areas. Id.

[2] Applying similar principles here, we conclude that

GGFA is not a state actor. First, running festivals is not a traditional municipal function. Second, just as in Gaston, the

City of Gilroy required a permit, showing that the City

retained control of the park and provided security services.

Unlike in Gaston, where the City actually contributed money

to the festival, the City of Gilroy billed the GGFA for its

security services. There is even less connection between Gilroy and GGFA than between the city and the festival in Gaston. 

2Additionally, we have required that for a private actor to be considered

a state actor under a “public function test, the function at issue must be

both traditionally and exclusively governmental.” Lee v. Katz, 276 F.3d

550 (9th Cir. 2002) (emphasis added). 

12068 VILLEGAS v. GILROY GARLIC FESTIVAL
[3] Nevertheless, the Top Hatters rely upon United States

v. Davis, 482 F.2d 893, 901-04 (9th Cir. 1973), overruled on

other grounds by United States v. Aukai, 497 F.3d 955, 960-

61 (9th Cir. 2007) (en banc). There, we held that when private

security guards implemented an airport security program

ordered by the President of the United States, they were

engaging in a predominately government function and that the

federal government was the dominant actor. Davis, 482 F.2d

at 901-04. Unlike Davis, there is no showing here that security activity is a dominant or even a major purpose of the

GGFA. Furthermore, there is no indication in the record that

the City of Gilroy plays a dominant role in controlling the

actions of the organization or the content of the festival.3

3Collins v. Womancare, 878 F.2d 1145 (9th Cir. 1989), on which the

dissent relies, does not counsel otherwise. Dissent at 12075-76, 12080-81.

First, there is no evidence that the City or the police department played

any part in drafting the dress code or any other aspect of the Festival.

Police were required to be present to provide security, a legitimate state

interest when such a large crowd is gathered. See Berger v. Hanlon, 129

F.3d 505, 514 (9th Cir. 1997), rev’d on other grounds, 526 U.S. 808

(1999) (per curiam), opinion reinstated, 188 F.3d 1155 (9th Cir. 1999).

Here, unlike in Berger where there was “a written contractual commitment

between the government and the media to engage jointly in an enterprise

that only the government could lawfully institute—the execution of a

search warrant,” maintaining security is not something only the government could lawfully institute. Id.

Second, although the dissent focuses on the “neutrality” of the officers

in Womancare, here, unlike in Womancare where police “neutrality” was

of greater importance due to the general right of anyone to protest on a

sidewalk, a person does not have a general right to wear attire of their

choosing to a privately run festival. See Hurley v. Irish-Am. Gay, Lesbian

& Bisexual Group of Boston, 515 U.S. 557, 579 (1995) (recognizing right

of parade organizers to exclude unwanted participants despite its “use of

the streets”). 

Third, the additional factors that the dissent lists to suggest “joint

action,” including the percentage of the citizens of Gilroy working at the

festival, the increased income generated, and “the assistance and involvement of the City’s Engineering Division, Building & Safety Division, Fire

Department, Chemical Control Division, and Police Department,” could

VILLEGAS v. GILROY GARLIC FESTIVAL 12069
Following the reasoning of Gaston, we are satisfied that

GGFA was not a state actor for purposes of section 1983 liability.4

IV

[4] The Top Hatters also contend that the City of Gilroy is

liable under Monell v. Department of Social Services, 436

U.S. 658, 691 (1978), for violating their First Amendment

rights by enforcing the GGFA dress code. But it is generally

not a constitutional violation for a police officer to enforce a

private entity’s rights. As the district judge noted in this case,

and we agree, if the ability “to exclude others from public

property during the course of a limited, permitted use” were

found to be a constitutional violation, “[e]very picnic, wedding, company outing, meeting, rally, and fair held on public

grounds would be subject to constitutional scrutiny.” Villegas,

363 F. Supp. 2d at 1216. Because there is no constitutional

violation, there can be no municipal liability. 

apply equally to the building of a new fertilizer plant, but that would not

make the construction of such plant state action. Dissent at 12076. Moreover, the large increase in visitors from afar highlights that the main concern of the City in maintaining a police presence was public safety, not a

share in the financial success of the Festival. 

4The dissent finds fault with our conclusion of state action, stating that

we “consider[ ] only the ‘governmental function’ test.” Dissent at 12074.

But, it is clear from our analysis that we consider not only whether a festival is a traditional state function but also factors such as the level of control the City has over the festival, the level of financial contribution of the

City to the festival, etc. See Brentwood Academy, 531 U.S. at 295-99

(emphasizing that federal courts should apply a flexible multi-factor analysis when determining whether the action of a private actor is really state

action for purposes of the Fourteenth Amendment). Moreover, the dissent’s approach seems to be internally inconsistent, noting that there is “no

specific formula for defining state action” but then stating that we must

apply “four distinct—but not mutually exclusive—tests.” Dissent at

12074; see also Brentwood Academy, 531 U.S. at 295-99 (describing the

“four distinct . . . tests” referred to by the dissent in this case as simply

factors that may be considered in a flexible approach to state action). 

12070 VILLEGAS v. GILROY GARLIC FESTIVAL
[5] But even if there were a constitutional violation, the

Top Hatters cannot establish municipal liability under the

Monell standard. In Monell, the Supreme Court held that a

local government may indeed be liable for violation of constitutional rights resulting from “a policy statement, ordinance,

regulation or decision officially adopted and promulgated by

that body’s officers” or “pursuant to governmental ‘custom’

even though such a custom has not received formal approval

through the body’s official decisionmaking channels.” 436

U.S. at 690-91. 

[6] Generally, a municipality is liable under Monell only if

a municipal policy or custom was the “moving force” behind

the constitutional violation. See Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007). In other words, there

must be “a direct causal link between a municipal policy or

custom and the alleged constitutional deprivation.” City of

Canton v. Harris, 489 U.S. 378, 385 (1989). Furthermore, it

is not enough to “merely [to] alleg[e] that the existing . . . program . . . represents a policy for which the city is responsible.” Id. at 389. 

[7] Here, the Top Hatters point to the fact that the permit

requires that the City’s police provide a portion of the Festival’s security, that the City is reimbursed for providing such

security, and that Officer Bergman complied with the request

of the GGFA’s chair of security to remove individuals who

did not comply with GGFA’s dress code.5 None of these facts

gives rise to the conclusion that the City had a policy or custom of enforcing GGFA’s dress code. Furthermore, there is

no evidence in the record of a custom or official policy of the

5Although the GGFA chair of security was a police officer, there is no

showing that he was acting other than in his private capacity as the GGFA

chair of security. Furthermore, there is no evidence presented by the Top

Hatters that Officer Kludt was required to be the chair of security by City

policy or custom, or that the GGFA was required by the City to name a

police officer as its chair of security. 

VILLEGAS v. GILROY GARLIC FESTIVAL 12071
City to enforce the GGFA’s dress code, nor is there evidence

that Gilroy officials participated in forming the dress code. 

V

In light of the foregoing we do not reach the question of

whether wearing the Top Hatters clothing and insignia constituted expressive conduct. 

AFFIRMED.

THOMAS, Circuit Judge, with whom Circuit Judges

WARDLAW, FISHER, and PAEZ join, dissenting, and with

whom Circuit Judge GOULD joins in part: 

Gilroy holds itself out as the “Garlic Capital of the World,”

and no one seriously disputes the claim. In celebration of its

status, and recognizing that eating garlic is inevitably a shared

experience, Gilroy hosts an annual Garlic Festival in late July.

It is not a small affair. Approximately 120,000 visitors participate annually, and more than three million revelers have

attended the festival since its inception. Disregarding the

Bard’s admonition,1 the festival features “food laced with

over two tons of garlic.” It is, according to the promotional

materials, a “fun and fragrant” experience, with participants

“going bananas over garlic.” The festival is sponsored and

managed by the non-profit Gilroy Garlic Festival Association

(“Festival Association”). 

Members of the Top Hatters Motorcycle Club, Inc., a nonprofit charitable corporation, were expelled from the 2000

Festival for wearing vests bearing their corporate insignia—

1

“And, most dear actors, eat no onions nor garlic, for we are to utter

sweet breath.” William Shakespeare, A Midsummer Night’s Dream, act 4,

sc. 2. 

12072 VILLEGAS v. GILROY GARLIC FESTIVAL
thereby violating the Festival Association’s unwritten dress

code. The Top Hatters filed suit against the City of Gilroy

(“City”), the officer enforcing the dress code, and the Festival

Association. The district court concluded that genuine issues

of material fact existed as to whether the City’s involvement

constituted state action, but held that the wearing of the vests

did not constitute expressive conduct violative of the First

Amendment. The district court granted summary judgment as

to the Festival Association on the basis that it was not a state

actor. A three-judge panel of this court affirmed the grant of

summary judgment on the ground that the Top Hatters had not

engaged in protectable expressive conduct. We granted

rehearing en banc to reconsider the panel’s decision and

ordered that the panel opinion be designated as nonprecedential and non-citable. The majority has declined to

reach the First Amendment question, but has elected to hold

that neither the Festival Association nor the City was engaged

in state action. The evidence, viewed in the light most favorable to the Top Hatters, demonstrates that there are genuine

issues of fact precluding summary judgment. Therefore, I

respectfully dissent.

I

Genuine issues of material fact preclude summary judgment as to the Festival Association. As the majority notes, it

is a well-established principle that a private entity can be subject to liability as a state actor under certain circumstances.

See, e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715,

724-25 (1961) (holding that a privately owned restaurant that

leased property from a state-owned parking facility was a

state actor). The ultimate question is whether “the conduct

allegedly causing the deprivation of a federal right” is “fairly

attributable to the [s]tate.” Lugar v. Edmondson Oil Co. Inc.,

457 U.S. 922, 937 (1982). 

In deciding whether conduct of private parties amounts to

government action, we engage in a highly factual inquiry.

VILLEGAS v. GILROY GARLIC FESTIVAL 12073
Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983).

While “ ‘there is no specific formula for defining state

action,’ ” id. (quoting Melara v. Kennedy, 541 F.2d 802, 805

(9th Cir. 1976)), we have traditionally evaluated whether a

private actor has engaged in state action by relying on four

distinct—but not mutually exclusive—tests: (1) the governmental nexus test, see Jackson v. Metro. Edison Co., 419 U.S.

345, 351 (1974) (courts must consider whether there is a “sufficiently close nexus between the [s]tate and the challenged

action of the regulated entity so that the action of the latter

may be fairly treated as that of the [s]tate itself”); (2) the public or governmental function test, see id. at 352 (state action

is present when a private entity exercises functions traditionally and exclusively reserved to the state); (3) the state compulsion test, see Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)

(“a [s]tate normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert,

that the choice must in law be deemed to be that of the

[s]tate”); and finally, (4) the joint action test, see Dennis v.

Sparks, 449 U.S. 24, 27 (1980) (private actors can be considered state actors if they are “willful participant[s] in joint

action with the [government] or its agents”). Satisfaction of

any one of these tests can be sufficient to find state action. See

Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n,

531 U.S. 288, 303 (2001); Lee v. Katz, 276 F.3d 550, 554 (9th

Cir. 2002). 

Rather than applying the established four test analysis, the

majority, relying on a single case from the Fourth Circuit,

considers only the “governmental function” test, and ends its

inquiry there. However, unlike the plaintiffs in United Auto

Workers v. Gaston Festivals, Inc., 43 F.3d 902 (4th Cir.

1995), the Top Hatters do not rest their argument on the governmental function test. Thus, by relying solely on United

Auto Workers and narrowing its focus to just the single test

considered therein, the majority has set up a straw man to

prove what we already know: the Festival Association, in

12074 VILLEGAS v. GILROY GARLIC FESTIVAL
organizing a festival to promote and celebrate garlic, was not

likely performing a function that is “traditionally the exclusive

prerogative of the [s]tate.” Rendell-Baker v. Kohn, 457 U.S.

830, 842 (1982) (internal quotation marks omitted). The Top

Hatters do not argue that it was, and the Festival Association

allots only three sentences of its brief to affirm this common

sense point. Unfortunately, in limiting its analysis to whether

organizing a garlic festival is an exclusive governmental function, the majority ignores both the ultimate state action

inquiry and the Supreme Court’s traditional means of answering that question: “tak[ing] a flexible approach . . . [and]

applying a variety of tests to the facts of each case.” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447

(10th Cir. 1995); see also Brentwood Acad., 531 U.S. at 296

(noting that a “host of facts” can bear on whether action is

fairly attributable to the state and describing numerous tests

used by the Supreme Court). 

In this case, the test that most reasonably applies to the Festival Association’s relationship with the City is the “joint

action” test. Under this test, the Top Hatters have demonstrated that a triable issue of material fact exists as to whether

the Festival Association’s actions are “fairly attributable to

the [s]tate.” Lugar, 457 U.S. at 937. 

Joint action “exists where a private party is ‘a willful participant in joint action with the [s]tate or its agents.’ ” Collins

v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989). The

lynchpin of a finding of “joint action” is the existence of “a

substantial degree of cooperative action.” Id. Joint action

exists when the government “has ‘so far insinuated itself into

a position of interdependence with [the private entity] that it

must be recognized as a joint participant in the challenged

activity.’ ” Id. (alteration in original). Thus, the joint action

test will be satisfied when the actions of the state and the private party are intertwined or when the parties have a symbiotic relationship. See Brentwood Acad., 531 U.S. at 298-99.

VILLEGAS v. GILROY GARLIC FESTIVAL 12075
Viewing the evidence in the light most favorable to the Top

Hatters, as we are required to do here—a standard the majority fails to mention, let alone apply—demonstrates that the

relationship between the City and the Festival Association is

sufficiently intertwined to create a triable issue of fact as to

whether the joint action test has been satisfied. 

First, the festival is not an intimate, private gathering. It is

the largest event of the year in Gilroy. As the district court

noted, the population of Gilroy expands five-fold during the

festival, with the concomitant significant impact on the local

economy. Over 4,000 community volunteers—over ten percent of the citizens of Gilroy—work in some capacity at the

festival. For the duration of the festival, it engulfs the City. In

order to administer this mammoth event safely, the festival

required the assistance and involvement of the City’s Engineering Division, Building & Safety Division, Fire Department, Chemical Control Division, and Police Department. In

other words, the very nature of the festival requires significant

intertwining of resources between the City and the Festival

Association. 

Second, the presence of an agreement between the government and the private party is also a significant factor in applying the joint action test. “The Supreme Court has said [the

joint action test] is satisfied when the plaintiff is able to establish an agreement, or conspiracy between a government actor

and a private party.” Berger v. Hanlon, 129 F.3d 505, 514

(9th Cir. 1997) (citing Dennis, 449 U.S. at 27-28), rev’d on

other grounds, 526 U.S. 808 (per curiam), opinion reinstated,

188 F.3d 1155 (9th Cir. 1999). 

In this case, as a condition of the use of the property, the

City required the Festival Association to apply for and receive

a special event permit. As one of the conditions for receiving

the permit, the City required the Festival Association to staff

the festival with City police officers and to reimburse the City

for the expense. The number of personnel deployed was to be

12076 VILLEGAS v. GILROY GARLIC FESTIVAL
negotiated between the Festival Association and the City,

although the City generally provided twenty-five percent of

the festival’s security force. These police officers were considered to be on duty and working within the course and

scope of their employment with the City while stationed at the

festival. 

Third, participation of state actors in the private association

is an indicia of joint action. See Brentwood Acad., 531 U.S.

at 298 (examining composition of the membership of a private athletic association in holding it was a state actor). By

tradition, the head of security for the Festival Association was

a member of the City police force. The 2000 festival was no

exception. In the year in question, the head of security for the

Festival Association was City Police Sergeant Donald Kludt.

Fourth, although the City’s police officers acted within the

course and scope of their employment with the City when

deployed at the festival, the officers took orders from the Festival Association with respect to enforcing the Festival Association’s dress code. Before the 2000 festival, City police

officers attended briefings as to the parameters of the dress

code and were instructed to exclude persons wearing “group

clothing that could inspire conflict,” as Gilroy City police

officer Brenda Bergman testified. 

Officer Bergman, the City police officer who participated

in removing the Top Hatters from the festival, testified that

Sergeant Kludt was her direct supervisor during the course of

her regular employment with the City. Bergman also testified

that during the festival, when Sergeant Kludt was serving as

head of security, she would take directions from him either in

his capacity as her direct supervisor or in his capacity as

security chief for the Festival Association. 

These facts alone create a triable issue of fact as to whether

the substantial cooperation that existed between the City and

the Festival Association with respect to the dress code constiVILLEGAS v. GILROY GARLIC FESTIVAL 12077
tuted joint action. However, the specifics of the encounter at

issue also provide evidence of substantial cooperation and the

intertwining of the City and the Festival Association. 

We have previously considered the circumstances in which

a police officer’s involvement in a private enforcement action

constitutes state action such that the private entity is liable in

a line of cases involving police presence at private vehicle

repossessions and evictions. See, e.g., Meyers v. Redwood

City, 400 F.3d 765 (9th Cir. 2005); Howerton, 708 F.2d 380;

Harris v. City of Roseburg, 664 F.2d 1121 (9th Cir. 1981).

These cases teach us that “[w]hile mere acquiescence by the

police to ‘stand by in case of trouble’ is insufficient to convert” a private enforcement action into one attributable to the

state, “police intervention and aid . . . does constitute state

action.” Harris, 664 F.2d at 1127. Even mere assistance in

effectuating an enforcement action or the intimidation of a

person so “as to cause him to refrain from exercising his legal

right to resist” will support a finding of state action. Id. 

In Harris, we found state action where a man holding a

security interest in a semi-tractor requested two officers to

accompany him while he attempted to repossess the semitractor. Id. at 1124. When Harris, the owner of the truck, confronted his creditor, one of the officers “stepped in and told

Harris to ‘stand back or get away.’ ” Id. In response to Harris’s question about what was happening, the officer

explained that the creditor had come to repossess the truck,

and that he, the officer, “ ‘came out to stand by.’ ” Id. Harris

testified that the officer told him that if he interfered in any

way, he would be taken to jail, and that if the officers had not

been present, he would have physically resisted the repossession. Id. at 1127. Concluding that an officer’s assistance or

intimidation is sufficient to constitute state action, we held

that the officer’s conduct had converted the repossession in

Harris into state action. Id.

As in Harris, here Officer Bergman did more than merely

“stand by in case of trouble”: she actively assisted Kludt in

12078 VILLEGAS v. GILROY GARLIC FESTIVAL
enforcing the Festival Association’s unwritten dress code policy. First, Bergman, at Kludt’s direction, approached the Top

Hatters and ordered them to follow her to the festival’s

entrance gate. According to plaintiff Donald Desrosiers, he

obeyed Bergman precisely because she was clearly an officer:

“when a police officer comes up and says follow you, you follow them. That’s the nature of the law. . . . It felt threatening.”

Kludt asked Bergman to approach the Top Hatters precisely

because he was hoping for that effect—as an armed, uniformed officer, Kludt believed Bergman “would give some air

of authority” to his request that the Top Hatters remove their

vests or leave the festival. 

Moreover, at least one of the Top Hatters testified that it

was Officer Bergman who first informed the Top Hatters of

the festival’s dress code policy, and indicated that if they

refused to remove their “colors,” they would have to leave the

festival. Sergeant Kludt then joined Bergman and the Top

Hatters at the festival’s gate, where he repeated Bergman’s

ultimatum. Plaintiff Marcelo Orta, Jr. recalled that Officer

Bergman supported Kludt by telling the Top Hatters they

were a gang and that they “just needed to leave, that they

didn’t want our kind there.” Finally, once the Top Hatters had

received their refunds, other uniformed Gilroy police officers

escorted the plaintiffs to their bikes. Those officers also echoed Kludt and Bergman, saying, “All you have to do is take

your patch off, you can go back in.” 

Officer Bergman and other uniformed Gilroy police officers actively assisted Sergeant Kludt in enforcing the Festival

Association’s dress code by requesting that the plaintiffs follow Bergman, demanding that they remove their vests, and

lending Kludt’s own statements “an air of authority.” Moreover, at least two of the Top Hatters testified that they knew

Kludt himself to be a Gilroy police officer, as he identified

himself to them as such and wore a badge. These actions meet

Harris’s standard for state action—Officer Bergman and the

other Gilroy officers did more than merely stand by in case

VILLEGAS v. GILROY GARLIC FESTIVAL 12079
of trouble—they actively aided Kludt in enforcing the Festival

Association’s dress code. 

Our decision in Womancare also supports the conclusion

that the Festival Association’s actions are fairly attributable to

the state. See 878 F.2d 1145. In Womancare, we held that a

group of anti-abortion protestors had failed to satisfy the joint

activity test for state action when employees of a woman’s

health center performed citizens’ arrests on protestors whom

they believed were violating an injunction. Id. at 1155. While

we noted that there “the impetus for the arrests” came from

the health center’s employees, not from the police, we emphasized the independence of the police officers. Id. at 1155-56

(“In short, there is no indication in the record that state agents

failed to use independent judgment . . . .”). 

In Womancare, the employees first attempted to serve the

protestors with the injunction, and when that effort failed,

they called the police. Id. at 1146. Once a police officer had

arrived on the scene, the officer conducted “an independent

investigation” and then “refused . . . to arrest the protestors on

his own authority.” Id. at 1155. Additionally, we noted that

the protestors had not alleged any facts to contradict the

employees’ contention that the “police maintained a policy of

neutrality in the dispute.” Id. The plaintiffs had “presented no

evidence from which [the] court could infer ‘a prearranged

plan, customary procedure, or policy that substituted the judgment of a private party for that of the police.’ ” Id. (quoting

Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th

Cir. 1987)). 

Here, while the impetus for removing the Top Hatters from

the festival also came from the private party and not the state,

Sergeant Kludt enlisted Officer Bergman’s aid from the

beginning. Rather than calling for police assistance after

approaching the plaintiffs as the employees in Womancare

did, here Kludt asked Bergman to make the initial contact

with the Top Hatters. He relied on her “air of authority” to

12080 VILLEGAS v. GILROY GARLIC FESTIVAL
escort them out of the festival without a confrontation. Moreover, Bergman did not participate as an independent and neutral official, but rather acted at Kludt’s direction to enforce the

Festival Association’s policies. Bergman also provided testimony that indicated that Gilroy police officers working at the

festival were customarily trained as to the festival’s dress

code policy and had the authority to enforce it. Unlike in

Womancare, then, Bergman was not summoned to the scene

to exercise her neutral, independent judgment about the situation, but was called in by the Festival Association’s security

chair in order to effectuate the plaintiffs’ removal based on

the Festival Association’s own policies. There is thus a genuine issue of material fact as to whether Bergman’s participation rose to the level of “substantial cooperation” sufficient to

establish state action under the joint activity test. 

II

The district court properly concluded that triable issues of

fact precluded summary judgment as to the City and Officer

Bergman on the question of state action. 

A

There is really no doubt that Officer Bergman was acting

under color of law when she removed the Top Hatters from

the festival. She was on duty with the City at the time of the

incident. She was acting within the course and scope of her

City employment. She was uniformed, visibly armed, and

wearing a badge. She was summoned to assist because of her

authority as a police officer. She identified herself as an officer, and she used her official authority to remove the Top Hatters from the festival. These factors are clearly sufficient to

establish she was acting under color of law when removing

the Top Hatters, as the district court properly concluded. See,

e.g., Traver v. Meshriy, 627 F.2d 934, 938 (9th Cir. 1980)

(holding that an off-duty officer serving as a security officer

VILLEGAS v. GILROY GARLIC FESTIVAL 12081
at a bank was acting under color of law when the officer

flashed police identification when arresting the plaintiff). 

The City argues that Bergman was only there to “stand by

in case of trouble.” The record suggests otherwise and, at the

minimum, there is certainly a triable issue of fact as to that

assertion. As we noted in Harris, “police intervention and aid

[in private enforcement actions] does constitute state action,”

and “there may be a deprivation within the meaning of § 1983

. . . when [an] officer assists in effectuating [the private

enforcement action] . . . or so intimidates [the plaintiff] as to

cause him to refrain from exercising his legal right[s]. . . .”

664 F.2d at 1127. The record indicates that Bergman used her

authority to assist in removing the Top Hatters, and they

acquiesced in response to her official authority and intimidation. 

B

The district court also properly concluded that there were

triable issues of fact as to the City’s liability under § 1983 for

Officer Bergman’s actions. Of course, the mere fact that Officer Bergman was a state actor is not sufficient to establish the

City’s liability. To survive summary judgment on the issue of

the City’s liability for Officer Bergman’s actions, the Top

Hatters must demonstrate that there is a genuine issue of

material fact as to whether she acted pursuant to a governmental policy or custom. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690-94 (1978) (“[L]ocal governments, like

every other § 1983 ‘person,’ . . . may be sued for constitutional deprivations visited pursuant to governmental ‘custom’

even though such a custom has not received formal approval

through the body’s official decisionmaking channels.”). In a

Monell claim, there are three ways to show a policy or custom

of a municipality: (1) by showing “a longstanding practice or

custom which constitutes the standard operating procedure of

the local government entity”; (2) “by showing that the

decision-making official was, as a matter of state law, a final

12082 VILLEGAS v. GILROY GARLIC FESTIVAL
policymaking authority whose edicts or acts may fairly be

said to represent official policy in the area of decision”; or (3)

“by showing that an official with final policymaking authority

either delegated that authority to, or ratified the decision of,

a subordinate.” Ulrich v. City & County of San Francisco,

308 F.3d 968, 984-85 (9th Cir. 2002) (internal quotation

marks and citations omitted). 

The key question here is whether the City had a policy or

custom of enforcing the Festival Association’s dress code at

the 2000 festival. There clearly is a triable issue of fact as to

that question. Officer Bergman testified that an incident at the

1992 festival “helped inspire a type of policy tightening down

dress code type issues.” (Emphasis added). In response to the

question of whether she had received any type of directive or

order from the supervisor of police operations as to the dress

code, she responded that officers stationed at the festival

attended briefings where “[the supervisor] would basically

give parameters of the dress code.” She summarized these

parameters by explaining that “we were trying to exclude

group clothing that could inspire conflict.” Consequently, she

testified that she would have enforced the dress code on her

own initiative to expel visitors dressed in apparent gang colors and probably would have ejected a visitor wearing a Nazi

uniform. In short, Officer Bergman’s understanding was that

she was “to exclude any type of group clothing that could

create a problem” and that she had the authority to confront

or eject someone based on dress code. “If there was any type

of question on whether something should or should not be

permitted,” she explained, “we would contact a supervisor

and go through them with their decision.” Sergeant Kludt testified that the Festival Association gave directions to all of the

officers concerning the dress code policy. During the incident

in question, both he and Officer Bergman explained the dress

code policy to the Top Hatters and indicated the policy would

be enforced. 

The direct evidence of custom or policy is much stronger

in this case than in others in which we have held there are triVILLEGAS v. GILROY GARLIC FESTIVAL 12083
able factual issues concerning custom. See Blair v. City of

Pomona, 223 F.3d 1074, 1080 (9th Cir. 2000) (testimony

about “a code of silence” among police officers sufficient to

create a triable issue of fact); Wallis v. Spencer, 202 F.3d

1126, 1142 (9th Cir. 2000) (custom inferred from police conduct); Henry v. County of Shasta 132 F.3d 512, 518 (9th Cir.

1997) (same); Navarro v. Block, 72 F.3d 712, 715 (9th Cir.

1995) (911 dispatcher’s testimony that it was the practice of

the Sheriff’s Department not to classify domestic violence

calls as emergencies sufficient to create a triable issue of

fact). Indeed, there is no evidence at all in the record that the

City officers assigned to the festival were not to enforce—or

assist in the enforcement of—the Festival Association’s

unwritten dress code. 

In considering the grant of summary judgment, we must

draw all inferences and construe the record evidence in the

light most favorable to the Top Hatters. See Saucier v. Katz,

533 U.S. 194, 201 (2001). Considering the record evidence,

there is little doubt that the City had a policy of assisting in

the enforcement of the Festival Association’s dress code in

2000. Therefore, there exists a triable issue of fact as to the

City’s potential liability under Monell, as the district court

correctly concluded. I thus respectfully disagree with the

majority that summary judgment was appropriate as to the

City. 

III

The panel decision concluding that the Top Hatters’ constitutional rights were not violated has been designated as nonprecedential and the majority has declined to reach that issue.

Thus, it is unnecessary to discuss that question in any detail.

However, if we were to reach the issue, I would hold that

under our precedent in Sammartano v. First Judicial District

Court, 303 F.3d 959 (9th Cir. 2002), the Top Hatters’ act of

wearing their motorcycle club vests and insignia was expres12084 VILLEGAS v. GILROY GARLIC FESTIVAL
sive conduct deserving of protection under the First Amendment. 

For the reasons expressed herein, I respectfully dissent. 

GOULD, Circuit Judge, dissenting in part: 

Because there was no “policy statement, ordinance, regulation, or decision officially adopted and promulgated” by the

City of Gilroy to enforce the dress code at issue, the city is

not liable under Monell v. Department of Social Services, 436

U.S. 658, 690-91 (1978). Accordingly, I agree with much of

the substance of the majority’s presentation in Part IV of the

majority opinion. Stated another way, I agree with the majority’s Monell analysis, except for footnote 5 and the sentence

reciting “[b]ecause there is no constitutional violation, there

can be no municipal liability.” 

Because I conclude that there is an issue of fact as to

whether the Gilroy Garlic Festival Association and the City of

Gilroy engaged in joint action sufficient to render the festival

a state actor, I join Part I of Judge Thomas’s dissent. If this

fact issue is decided favorably to appellants, then there is the

distinct possibility of constitutional violation, but that issue

cannot correctly be reached on the current record.

VILLEGAS v. GILROY GARLIC FESTIVAL 12085