Benjamin K. Orin v. Richard Barclay, and His Marital Community, in His Individual and Official Capacity Robert Wallace, and His Marital Community, in His Individual Capacity Alan Hornberg, and His Marital Community, in His Individual Capacity Rick McCluskey and His Marital Community, in His Individual Capacity City of Bremerton, a Municipal Corporation

Citations: 272 F.3d 1207; 2001 Cal. Daily Op. Serv. 9597; 2001 Daily Journal DAR 11999; 2001 U.S. App. LEXIS 24194Docket: 00-35177

Court: Court of Appeals for the Ninth Circuit; November 8, 2001; Federal Appellate Court

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Plaintiff Benjamin Orin, a member of the anti-abortion group Positively Pro-Life, attempted to conduct a protest at Olympic Community College (OCC) on October 30, 1997. He informed Interim Dean of Students Richard Barclay of their plans to display graphic posters depicting aborted fetuses, which had previously provoked strong reactions, including violence. Barclay allowed the protest under specific conditions: no disturbances or interference with campus activities and no overtly religious expressions. After four hours of demonstration, which attracted varying crowd sizes and prompted student complaints, campus security asked Orin to leave due to violations of these conditions. When he refused, police arrested him for criminal trespass and failure to disperse. The case involves determining whether the imposed conditions violated Orin's First Amendment rights and whether the defendants could be held liable under 42 U.S.C. §§ 1983 and 1985(3). The district court's ruling on Orin's state tort claims was also reviewed. The Ninth Circuit affirmed in part and reversed in part, indicating that some claims may proceed.

At approximately 4:00 p.m., OCC security chief Robert "Rocky" Wallace requested protesters to leave the campus. When they refused, he sought police assistance, indicating the situation was escalating. The protesters claimed that student Barclay threatened them with arrest if they referenced God or the Bible, to which protester Orin responded defiantly. The protesters asserted they did not use inflammatory language and felt safe, while security officers contended the demonstration incited hostility, with students allegedly being verbally assaulted and feeling threatened. 

Bremerton Police Officer Alan Hornberg was dispatched to the scene, where Wallace informed him that the protesters were violating conditions imposed by Barclay and that the situation was dangerous for both parties. Hornberg noted a large, angry crowd and asked the protesters to leave. Orin refused, insisting on his First Amendment rights, leading to his arrest for criminal trespass and failure to disperse. 

Officer McCluskey arrived post-arrest, and Hornberg reported the charges. Orin claimed that Hornberg questioned him without providing Miranda rights but later recited them when asked. Orin also alleged constitutional violations regarding jail conditions and treatment. He subsequently sued Dean Barclay, Wallace, Hornberg, McCluskey, and the City of Bremerton on several grounds, including violations of his First Amendment rights and false arrest. The district court granted the defendants summary judgment, citing qualified immunity for the individual defendants on First Amendment claims, and Orin appealed the decision.

A district court's order granting summary judgment on all claims and parties is considered a "final order" under 28 U.S.C. § 1291, allowing for appellate jurisdiction. Summary judgment is reviewed de novo, with evidence and inferences favoring the non-moving party. Under 42 U.S.C. § 1983, individuals may sue public officials for violations of federal rights; however, qualified immunity protects officials from liability unless their actions violate clearly established rights known to a reasonable person. To assess qualified immunity, it must first be determined whether a prima facie claim exists that a defendant violated constitutional rights, followed by an evaluation of whether those rights were clearly established.

A right is considered clearly established if its contours are clear enough for a reasonable official to recognize a violation, as clarified in Anderson v. Creighton. Orin claims that conditions imposed by Barclay and enforced by Wallace violated his First Amendment rights. The first two conditions imposed—preventing public disturbances and interference with campus activities—are deemed content-neutral regulations that survive constitutional scrutiny, as they are narrowly tailored to achieve a legitimate educational purpose. However, the third condition, which prohibits religious worship or instruction, raises concerns because private religious speech is protected under the First Amendment. While such expression is safeguarded, the extent of that protection depends on the nature of the public property involved.

Public property can be designated as a public forum or for other public purposes. The record does not clarify if OCC's quad is a designated public forum. It is established that a university does not have to make all facilities equally available to all individuals. However, Dean Barclay informed demonstrators they could use OCC's quad for expressive purposes under three conditions. Once OCC created this forum for expression, it could not impose a restriction limiting expression to secular content without violating the First Amendment. The imposition of a "no religion" condition by Barclay is a content-based regulation that must meet a compelling state interest standard, which it fails to do. According to prior rulings, public institutions cannot exclude religious speech from forums available to secular speakers. The Supreme Court has ruled that allowing religious organizations the same access as secular ones does not breach the Establishment Clause. Barclay's condition contradicts established law, and a reasonable official should have recognized that restricting Orin's expression based on its religious nature violated his First Amendment rights. Consequently, the court reverses the district court's ruling granting Barclay qualified immunity and remands the case for trial. The district court's conclusion that security officer Wallace had qualified immunity is also reversed, as the threshold for qualified immunity requires showing that the officer's conduct violated a constitutional right.

Wallace's rationale for asking Orin to leave campus is ambiguous; it is uncertain whether it was based on a violation of Barclay's "no religion" condition or other conditions. Viewing the facts favorably for Orin, it is determined that Wallace potentially violated Orin's First Amendment rights, leading to the reversal of the district court's ruling granting Wallace qualified immunity. In contrast, police officers Hornberg and McCluskey are granted qualified immunity because they had probable cause to arrest Orin for trespass and failure to disperse, unrelated to the content of his speech. Dispatch reports and Hornberg's observations of a large, agitated crowd justified their actions. The court affirms that Hornberg and McCluskey did not infringe on Orin's First Amendment rights. Furthermore, the City of Bremerton is not liable for Orin's claims, as no constitutional violations occurred by its employees, aligning with the requirements set forth in Monell v. Department of Social Services. Finally, Orin's claim under 42 U.S.C. § 1985(3) was dismissed, as he argued that there was conspiratorial action to deprive him of equal protection, but the court did not find sufficient grounds for this claim.

To establish a violation under 42 U.S.C. § 1985(3), Orin must demonstrate a discriminatory intent behind the defendants' actions aimed at depriving him of equal rights. The court found no evidence of such animus, leading to the conclusion that the district court rightly granted summary judgment for the defendants on this claim. 

Orin's state law claim for false arrest was also dismissed due to the police officers, Hornberg and McCluskey, having probable cause for the arrest. Probable cause exists when the facts known to the officers would lead a reasonable person to believe that a crime had been committed. The information they received indicated that demonstrators, including Orin, had violated campus regulations and posed a risk due to a potentially violent crowd. Hornberg’s own observations corroborated this information, establishing probable cause for Orin's arrest for criminal trespass and failure to disperse under Washington law.

Probable cause serves as a complete defense against false arrest claims, which justified the district court's dismissal of Orin's claim. 

Regarding Orin's claim for intentional infliction of emotional distress, Washington law requires proof of extreme and outrageous conduct, intentional or reckless distress infliction, and resulting severe emotional distress. The court determined that Orin did not allege conduct by any defendant that met the high threshold of outrageousness necessary to support a claim under this tort.

To establish a claim for negligent infliction of emotional distress in Washington, Orin must demonstrate that defendants breached a legal duty, causing him to experience objective symptoms of emotional distress, which must be medically diagnosable and supported by evidence. Although Orin argues that the defendants had a duty not to arrest him without probable cause, his arrest was indeed supported by probable cause, indicating no breach of duty occurred. Consequently, the district court's decision to grant summary judgment dismissing Orin's claim was correct.

In the appeal, each party is responsible for its own costs. The judgment of the district court is affirmed in part, reversed in part, and remanded. 

Orin's additional arguments regarding violations of his Fourth Amendment and Equal Protection rights were minimally addressed in his complaint and appeal. The Fourth Amendment claim was not sufficiently pled, and the analysis of qualified immunity applicable to his First Amendment claim also pertains to his Fourth Amendment claim. His Equal Protection claim appears to overlap with his First Amendment claim and lacks sufficient development in his arguments. The court notes that Orin failed to demonstrate membership in a protected class under 42 U.S.C. § 1985(3) related to his opposition to abortion.

The court also refrains from discussing the potential outrage claims against Orin's jailers, as they were not named as defendants, nor does it consider the City of Bremerton's liability for their conduct due to insufficient allegations regarding training or a custom of mistreatment. A concurring opinion emphasizes that while the officers are entitled to qualified immunity, the majority's conclusions regarding the violation of Orin's First Amendment rights are unnecessary for the immunity analysis.

Qualified immunity is deemed sufficient to resolve the case against Officers Hornberg and McCluskey, rendering further analysis unnecessary. The author disputes the majority's determination that probable cause existed for Orin's arrest, asserting that probable cause requires facts leading a reasonable person to believe a crime was committed. Evaluating the circumstances favorably for Orin, it is concluded that no reasonable person would consider Orin's actions illegal. The arrest appears motivated by police concerns about potential violence from observers rather than Orin's conduct.

Under Washington law, probable cause for failure to disperse necessitates congregating with three or more individuals engaged in conduct posing a substantial risk of injury, which Orin's group did not meet, as there were only two others present. Additionally, the law states that a person is guilty of trespass if they unlawfully enter or remain on another's property, but public access is lawful if conditions of access are followed. Evidence shows Orin and the other protesters complied with lawful conditions set by Dean Barclay, with no indication from Officer Hornberg that Orin was obstructing access. Hornberg's only basis for believing Orin was trespassing stemmed from a claim by Wallace, which was contradicted by Orin's assertion that they were asked to leave due to the content of their speech rather than any violation of conditions. Consequently, the author disagrees with the majority's conclusion regarding the existence of probable cause for Orin's arrest for trespass.

Police officers often face the necessity of making quick decisions in hazardous situations, and qualified immunity serves to protect them from liability when their errors are deemed reasonable. In this case, Officers Hornberg and McCluskey are considered to have made a reasonable mistake, justifying their entitlement to summary judgment. However, there is dissent regarding the majority opinion that a negative audience reaction to a speaker can establish probable cause for arrest. It is argued that the appropriate action in response to violence should focus on arresting those who commit acts of violence, rather than suppressing lawful First Amendment activities as a preventive measure. Evidence presented includes an incident where a protester, McIntyre, allegedly struck a campus security officer, although McIntyre contended this was unintentional. Nevertheless, even under a favorable interpretation of the facts, this incident does not demonstrate a significant risk of injury from the protesters.