Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 1 of 22 Page ID #:333 1 BRADLEY S. PHILLIPS (SBN 85263) brad.phillips@mto.com 2 JOHN F. MULLER (SBN 300839) john.muller@mto.com 3 MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue 4 Thirty-Fifth Floor Los Angeles, California 90071-1560 5 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 6 Attorneys for Defendants William Covino, 7 Nancy Wada-McKee, Lisa Chavez, and John Ortiz 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 11 12 YOUNG AMERICA'S FOUNDATION, et al, 13 Plaintiffs, 14 vs. 15 WILLIAM COVINO, et al. 16 Defendants. 17 18 19 20 Case No. 2:16-cv-03474-DSF NOTICE OF MOTION AND MOTION OF ADMINISTRATOR DEFENDANTS TO DISMISS PURSUANT TO RULE 12(B)(1) AND 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Declaration of Lisa M. Chavez filed separately herewith Judge: Dale S. Fischer Date: September 12, 2016 Time: 1:30 p.m. Courtroom: 840 21 22 23 24 25 26 27 28 2:16-cv-03474 ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 2 of 22 Page ID #:334 1 2 NOTICE OF MOTION AND MOTION TO DISMISS PLEASE TAKE NOTICE that on September 12, 2016, at 1:30 p.m., before 3 the Honorable Dale S. Fischer, in Courtroom 840 of the above-captioned Court 4 located at 255 East Temple Street, Los Angeles, California 90012, Defendants 5 William Covino, Nancy Wada-McKee, Lisa Chavez, and John Ortiz (erroneously 6 sued as "Jon Ortiz") (collectively, the "Administrator Defendants"), administrators 7 at California State University-Los Angeles ("CSU-LA" or the "University"), will 8 and hereby do move under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) 9 to dismiss with prejudice Plaintiffs' Complaint for lack of subject-matter jurisdiction 10 and failure to state a claim upon which relief can be granted. 11 The motion is made on the ground that, with respect to Plaintiffs' first and 12 second claims, regarding a University policy authorizing the charge of a fee for 13 enhanced security services at events deemed "controversial," the Complaint does 14 not allege any injury or risk of future injury. As Plaintiffs were not assessed a fee 15 under the policy, and given that the policy has been repealed, Plaintiffs lack Article 16 III standing and their claims are, in any event, moot. Plaintiffs' third and fourth 17 claims, regarding events on the day of Plaintiff Shapiro's speech, also fail. 18 Plaintiffs' claim that the Administrator Defendants had a First Amendment duty to 19 prevent third parties from interfering with Plaintiffs' rights is foreclosed by Supreme 20 Court precedent, and their Equal Protection claim is not supported by any 21 allegations of discriminatory treatment. 22 This motion is based on this Notice of Motion and Motion, the accompanying 23 Memorandum of Points and Authorities, the Declaration of Lisa M. Chavez, all 24 pleadings and papers of record and on file in this case, and such additional authority 25 and argument as my be presented at or before the time this motion is submitted. 26 This motion is made following the conference of counsel pursuant to L.R. 7-3 27 which took place on July 8, 2016. 28 -1ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 3 of 22 Page ID #:335 1 DATED: July 14, 2016 2 MUNGER, TOLLES & OLSON LLP BRADLEY S. PHILLIPS JOHN F. MULLER 3 4 5 6 7 8 By: /s/ Bradley S. Phillips BRADLEY S. PHILLIPS Attorneys for Defendants William Covino, Nancy Wada-McKee, Lisa Chavez, and John Ortiz 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 4 of 22 Page ID #:336 1 TABLE OF CONTENTS 2 Page 3 4 5 MEMORANDUM OF POINTS AND AUTHORITIES............................................. 1 6 BACKGROUND ......................................................................................................... 2 7 ARGUMENT ............................................................................................................... 4 8 I. Plaintiffs' First and Second Claims, Based on the Security Fees Policy, Fail as a Matter of Law ............................................................... 4 9 II. Plaintiffs' Third and Fourth Claims, Based on Alleged Failure to 10 Prevent Third Parties from Blocking Theater Entrances, Fail as a Matter of Law.......................................................................................... 7 11 A. Plaintiffs' Third Claim, Under the First Amendment, Fails......... 7 12 B. Plaintiffs' Fourth Claim, Under Equal Protection, Fails ............ 10 13 III. Plaintiffs' Claims for Damages Should Be Dismissed ......................... 12 14 A. Plaintiffs Allege No Actual Harm from Enforcement of 15 the Security Fees Policy.............................................................. 12 16 B. The Administrator Defendants Are Entitled to Qualified Immunity Because They Did Not Violate Any Clearly 17 Established Law .......................................................................... 13 18 CONCLUSION.......................................................................................................... 14 19 20 21 22 23 24 25 26 27 28 -iADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 5 of 22 Page ID #:337 1 TABLE OF AUTHORITIES Page(s) 2 3 FEDERAL CASES 4 Akiachak Native Cmty. v. U.S. Dep't of Interior, --- F.3d ---, 2016 WL 3568092 (D.C. Cir. July 1, 2016) ....................................... 6 5 6 Alexander v. Univ. of N. Fla., 39 F.3d 290 (11th Cir. 1994) (per curiam) ........................................................... 14 7 8 Ass'n for Info. Media & Equip v. Regents of the Univ. of Cal., 2012 WL 7683452 (C.D. Cal. Nov. 20, 2012) ....................................................... 5 9 Babbit v. United Farm Workers Nat'l Union, 10 442 U.S. 289 (1979) ............................................................................................... 4 11 Cty. of Los Angeles v. Davis, 12 440 U.S. 625 (1979) ............................................................................................... 6 13 DeShaney v. Winnebago County Department of Social Services, 14 489 U.S. 189 (1989) ............................................................................... 8, 9, 13, 14 15 Dream Palace v. Cty. of Maricopa, 384 F.3d 990 (9th Cir. 2004) .................................................................................. 4 16 17 FDIC v. Henderson, 940 F.2d 465 (9th Cir. 1991) ................................................................................ 10 18 19 Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498 (11th Cir. 1992) .............................................................................. 8 20 21 Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............................................................................................. 13 22 Hope v. Pelzer, 23 536 U.S. 730 (2002) ............................................................................................. 13 24 Icon Groupe, LLC v. Washington Cty., 25 948 F. Supp. 2d 1202 (D. Or. 2013) ............................................................... 11, 12 26 Jacobs v. Clark Cnty. Sch. Dist., 526 U.S. 419 (9th Cir. 2008) .................................................................................. 9 27 28 -iiADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 6 of 22 Page ID #:338 1 TABLE OF AUTHORITIES (continued) 2 Page(s) 3 Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963 (9th Cir. 2010) ................................................................................ 13 4 5 Laird v. Tatum, 408 U.S. 1 (1972) ................................................................................................... 5 6 Lindquist v. Idaho, 7 776 F.2d 851 (9th Cir. 1985) .................................................................................. 6 8 Lopez v. Candaele, 9 630 F.3d 775 ....................................................................................................... 4, 5 10 Love v. Hensley, 11 2010 WL 1626117 (S.D. Cal. Apr. 21, 2010) ...................................................... 10 12 LSO Ltd. v. Stroh, 205 F.3d 1146 (9th Cir. 2000) ................................................................................ 4 13 14 Mahtesian v. U.S. Office of Personnel Management, 388 F. Supp. 2d 1047 (N.D. Cal. 2005).................................................................. 1 15 16 Melendez-Garcia v. Sanchez, 629 F.3d 25 (1st Cir. 2010) ............................................................................ 13, 14 17 18 Nat'l Black Police Ass'n v. D.C., 108 F.3d 346 (D.C. Cir. 1997)................................................................................ 6 19 Native Vill. of Noatak v. Blatchford, 20 38 F.3d 1505 (9th Cir. 1994) .................................................................................. 6 21 Nelson v. Streeter, 22 16 F.3d 145 (7th Cir. 1994) .................................................................................... 9 23 Pearson v. Callahan, 555 U.S. 223 (2009) ............................................................................................. 13 24 25 Pietrangelo v. Alvas Corp., 664 F. Supp. 2d 420 (D. Vt. 2009), aff'd, 487 Fed. Appx. 629 (2d 26 Cir. 2012) ................................................................................................................ 8 27 Rio Grande Silvery Minnow v. Bureau of Reclamation, 28 601 F.3d 1096 (10th Cir. 2010) .............................................................................. 6 -iiiADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 7 of 22 Page ID #:339 1 TABLE OF AUTHORITIES (continued) 2 Page(s) 3 Rosenbaum v. City and County of San Francisco, 484 F.3d 1142 (9th Cir. 2007) .......................................................................... 9, 11 4 5 Saucier v. Katz, 533 U.S. 194 (2001) ............................................................................................. 13 6 Switzer v. Weaver, 7 2012 WL 6964863 (W.D. Va. Nov. 5, 2012), aff'd, 521 Fed. Appx. 8 208 (4th Cir. 2013) ............................................................................................... 11 9 Tater-Alexander v. Amerjan, 2011 WL 319012 (E.D. Cal. Jan. 28, 2011) ........................................................... 8 10 11 Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984) .................................................................................. 6 12 13 U.S. Parole Comm'n v. Geraghty, 445 U.S. 388 (1980) ............................................................................................... 6 14 15 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ............................................................................................. 10 16 White v. Lee, 17 227 F.3d 1214 (9th Cir. 2000) ............................................................................ 6, 7 18 Yassin v. Corr. Corp. of Am., 19 2011 WL 4501403 (S.D. Cal. Sept. 27, 2011) ..................................................... 10 20 FEDERAL RULES 21 Fed. R. Civ. P. 12(b)(1) ............................................................................................... 1 22 23 24 25 26 27 28 -ivADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 8 of 22 Page ID #:340 MEMORANDUM OF POINTS AND AUTHORITIES 1 2 Plaintiffs Young America's Foundation, CSULA Young Americans for 3 Freedom ("YAF"), Ben Shapiro, and Mark Kahanding (collectively, "Plaintiffs") 4 claim their First Amendment and Equal Protection rights were infringed in two ways 5 by Defendants William Covino, Nancy Wada-McKee, Lisa Chavez, and John Ortiz 6 (erroneously sued as "Jon Ortiz") (collectively, the "Administrator Defendants").1 7 Both claims fail as a matter of law. 8 First, Plaintiffs allege that the Administrator Defendants initially sought to 9 charge Plaintiffs a fee for enhanced security services for an event on the California 10 State University-Los Angeles ("CSU-LA" or the "University") campus at which 11 Plaintiff Shapiro would speak, pursuant to a campus policy that authorized charging 12 such a fee if an event were deemed "controversial" ("Security Fees Policy"). But 13 Plaintiffs also allege that the Administrator Defendants withdrew the request for 14 payment of a fee and allowed the event to proceed without any payment. Moreover, 15 as established by the Declaration of Lisa M. Chavez ("Chavez Decl.") and the 16 documents attached thereto,2 the Security Fees Policy has been repealed and 17 replaced with a policy that does not authorize assessing security needs, or imposing 18 security fees, based on whether an event involves a "controversial" activity. Under 19 this revised policy, the University will assess security needs, and assess fees, based 20 only on factors not related to viewpoint. Thus, Plaintiffs suffered no injury from 21 enforcement of the prior Security Fees Policy, and there is no risk of future 22 23 1 The Administrator Defendants are referred to as the "University Defendants" in the 24 Complaint. Complt. ? 74. The defendants are referred to as the Administrator 25 Defendants herein because not all of them are University employees. 2 26 "Where, as here, the subject matter jurisdiction of the court is challenged under Fed. R. Civ. P. 12(b)(1), the court may consider evidence outside the complaint 27 pertaining to this issue, and resolve factual disputes if necessary." Mahtesian v. U.S. 28 Office of Personnel Management, 388 F. Supp. 2d 1047, 1047 (N.D. Cal. 2005). -1ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 9 of 22 Page ID #:341 1 enforcement of that policy. Plaintiffs' first and second claims for relief therefore 2 fail as a matter of law, and this Court lacks jurisdiction over them. 3 Second, Plaintiffs allege that the Administrator Defendants failed to prevent 4 protestors who objected to Shapiro's speaking on campus from blocking the 5 entrances to the theater where Shapiro was to speak. Plaintiffs do not allege that the 6 Administrator Defendants themselves interfered in any way with Shapiro's ability to 7 speak. It is well-settled that the Administrator Defendants had no constitutional 8 obligation to prevent third parties from interfering with Shapiro's ability to speak or 9 otherwise interfering with Plaintiffs' exercise of their First Amendment rights, and 10 this is true regardless of whether the Administrator Defendants did or did not 11 comply with CSU-LA's policies or state or local laws. Moreover, Plaintiffs do not 12 allege any instance involving similar circumstances in which the Administrator 13 Defendants acted differently, thus rendering inadequate their conclusory pleading of 14 an equal-protection violation. Plaintiffs' third and fourth claims for relief therefore 15 also fail as a matter of law. 16 Finally, even if Plaintiffs have adequately alleged claims for relief, their 17 claims for damages should be dismissed. Plaintiffs have alleged no actual harm 18 resulting from the Security Fees Policy, because they were charged no fee, so they 19 have no claim for damages on their first and second claims. Further, the 20 Administrator Defendants have qualified immunity from damages on Plaintiffs' 21 third and fourth claims because they did not violate any clearly established 22 constitutional law. 23 24 BACKGROUND For purposes of this motion, Defendants accept as true these facts alleged in 25 the Complaint: Plaintiffs planned an event at the University, at which Plaintiff 26 Shapiro would speak, on February 25, 2016. Complt. ? 111. A week before the 27 event, on February 18, 2016, the University issued a Public Safety Work Request to 28 YAF, requiring that YAF pay the University $621.50 for security at the event -2ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 10 of 22 Page ID #:342 1 pursuant to the Security Fees Policy. Id. ? 121. Under the policy, an event 2 classified as involving "controversial activity" required at least three police officers, 3 zero to two parking officers, and two to five student assistants. Id.; see also id. Ex. 4 1 at ? 6.6.5. On February 22, 2016, YAF, through counsel, requested that the 5 security fee be rescinded, arguing that it violated the First Amendment. Id. ? 127; 6 see also id. Ex. 8. 7 The following day, February 23, 2016, CSU-LA Counsel Victor King 8 informed YAF that the fee would be rescinded. Id. ? 129; see also id. Ex. 9. 9 Plaintiffs do not allege a fee was ever assessed, and it was not. Chavez Decl. ? 2. 10 On June 29, 2016, President Covino signed a revised Administrative Procedure 505, 11 which eliminated the Security Fees Policy. Id. ? 3. The revised policy "does not 12 authorize assessing security needs, or imposing security fees, based on whether an 13 event involves a 'controversial' activity." Id. Under the policy, "the University will 14 assess security needs, and assess fees for security provided by the University, based 15 only on factors that are not related to viewpoint, such as the size of the crowd 16 expected at an event, the location of the event, the time of day when the event is 17 held, and the availability of parking in proximity to the event." Id. 18 On the day of the event, protestors gathered at the Student Union. Complt. 19 ? 141. Protestors linked arms and physically blocked access to the doors of the 20 theater where the event was held. Id. ? 143. University police officers did not 21 prevent the protestors from taking this action. Id. ? 146. Plaintiffs allege "[u]pon 22 information and belief" that "Defendants Covino and Wada-McKee instructed 23 University police officers not to take any action to remove the protestors from 24 blocking access to the doors or to otherwise assist any individuals in gaining access" 25 to the event. Id. ? 171. They allege that Defendants did so because they "disagreed 26 with the content and viewpoint" of the speech at the event. Id. ? 172. 27 28 -3ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 11 of 22 Page ID #:343 1 2 I. 3 4 ARGUMENT Plaintiffs' First and Second Claims, Based on the Security Fees Policy, Fail as a Matter of Law Plaintiffs' first two claims, under the First and Fourteenth Amendments, 5 challenge the Security Fees Policy. Complt. ? 241 ("Security Fees Policy and 6 associated practice violate[d] YAF's right to free speech as guaranteed by the First 7 Amendment to the United States Constitution."); id. ? 249 ("The lack of criteria, 8 factors, or standards in the ... Security Fees Policy and associated practice renders 9 the policy and practice unconstitutionally vague and in violation of YAF's right to 10 due process of law under the Fourteenth Amendment."). The Court lacks 11 jurisdiction over these claims, as Plaintiffs were never assessed a fee under the 12 Security Fees Policy and face no risk of future fees given the repeal of the policy. 13 In order to have Article III standing, Plaintiffs must show, inter alia, that they 14 have "suffered an injury-in-fact to a legally protected interest that is both concrete 15 and particularized and actual and imminent, as opposed to conjectural or 16 hypothetical." LSO Ltd. v. Stroh, 205 F.3d 1146, 1152-53 (9th Cir. 2000) (internal 17 quotation marks omitted). In a First Amendment challenge, a plaintiff may show 18 injury-in-fact prior to the enforcement of a government policy by demonstrating "a 19 realistic danger of sustaining a direct injury as a result of the [policy's] operation or 20 enforcement." Lopez v. Candaele, 630 F.3d 775, 785 (quoting Babbit v. United 21 Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). Even for such pre22 enforcement challenges, however, "plaintiffs must still show an actual or imminent 23 injury to a legally protected interest." Lopez, 630 F.3d at 785. This requirement is 24 an irreducible minimum: if a plaintiff asserts an overbreadth challenge to a speech 25 restriction regarding the First Amendment rights of parties not before the court, 26 "they must still satisfy 'the rigid constitutional requirement that plaintiffs must 27 demonstrate an injury in fact to invoke a federal court's jurisdiction." Id. (quoting 28 Dream Palace v. Cty. of Maricopa, 384 F.3d 990, 999 (9th Cir. 2004)). -4ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 12 of 22 Page ID #:344 1 As the Security Fees Policy was not enforced against the Plaintiffs, and it will 2 not be enforced against them in the future, Plaintiffs they have not shown a First 3 Amendment injury-in-fact. Plaintiffs suggest that the "Security Fees Policy and 4 associated practice chill, deter, and restrict YAF from freely expressing its political 5 beliefs" and has the same chilling effect on "students not before the Court who seek 6 to engage in private expression on campus." Complt. ?? 239-40. But Plaintiffs also 7 allege that on February 23, 2016, the day after Plaintiffs raised concerns about the 8 policy, "the University agreed to rescind the assessment of security fees on YAF." 9 Id. ? 128. Plaintiffs cannot show--and do not even allege--a past First Amendment 10 injury arising from the policy, as they were not assessed a fee. 11 Neither can Plaintiffs show any "realistic danger" of potential future injury 12 from the policy. The University declined to apply the policy to Plaintiffs when it 13 was in effect, and the University has since repealed the Security Fees Policy, 14 eliminating any possible assessment of security fees based on whether an activity is 15 deemed "controversial." Chavez Decl. ? 3. "Mere '[a]llegations of subjective chill 16 are not an adequate substitute for a claim of specific present objective harm or a 17 threat of specific future harm.'" Lopez, 630 F.3d at 787 (quoting Laird v. Tatum, 18 408 U.S. 1, 13-14 (1972)). Given that Plaintiffs cannot show injury-in-fact, harm to 19 parties not before the Court is irrelevant. There is no likelihood of such harm in any 20 event, given the University's disavowal and repeal of the policy. 21 Plaintiffs also have not shown injury-in-fact under the Fourteenth 22 Amendment. Plaintiffs allege that, because of alleged ambiguity in the Security 23 Fees Policy, "YAF has suffered, and continue[s] to suffer, economic injury and 24 irreparable harm." Complt. ? 250. But Plaintiffs have not alleged any nexus 25 between any "economic injury" and the purported vagueness of the Security Fees 26 Policy prior to the policy's repeal. When Plaintiffs questioned whether a fee should 27 apply, the University responded the next day, stating that no fee would be assessed. 28 Complt. ?? 128-29. Any costs Plaintiffs have incurred in challenging the Security -5ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 13 of 22 Page ID #:345 1 Fees Policy did not arise from vagueness in the policy, but rather from Plaintiffs' 2 contesting the application of the policy. Those costs do not confer standing. See 3 Ass'n for Info. Media & Equip v. Regents of the Univ. of Cal., 2012 WL 7683452, at 4 *3 (C.D. Cal. Nov. 20, 2012) ("litigation costs do not constitute injury in fact for 5 purposes of standing"). 6 For similar reasons, Plaintiffs' claims are also moot. "Mootness is 'the 7 doctrine of standing set in a time frame: The requisite personal interest that must 8 exist at the commencement of the litigation (standing) must continue throughout its 9 existence (mootness).'" Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1509 10 (9th Cir. 1994) (quoting U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397 11 (1980)). Even if Plaintiffs could show injury-in-fact, which they cannot, the case is 12 moot if "(1) it can be said with assurance that there is no reasonable expectation... 13 that the alleged violation will recur, and (2) interim relief or events have completely 14 and irrevocably eradicated the effects of the alleged violation." Lindquist v. Idaho, 15 776 F.2d 851, 854 (9th Cir. 1985) (quoting Cty. of Los Angeles v. Davis, 440 U.S. 16 625, 631 (1979)) (internal quotation marks omitted). The "'mere possibility' that an 17 agency might rescind amendments to its actions or regulations does not enliven a 18 moot controversy." Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 19 F.3d 1096, 1117 (10th Cir. 2010) (citation omitted); see also Akiachak Native Cmty. 20 v. U.S. Dep't of Interior, --- F.3d ---, 2016 WL 3568092, at *5 (D.C. Cir. July 1, 21 2016) (repeal of an agency regulation will moot a case absent "evidence indicating 22 that the challenged [rule] likely will be reenacted") (quoting Nat'l Black Police 23 Ass'n v. D.C., 108 F.3d 346, 349 (D.C. Cir. 1997)). Accordingly, a "permanent" 24 change in an agency's position will render a case moot, and it will do so even where 25 the litigation was the "catalyst" for the change. White v. Lee, 227 F.3d 1214, 1243 26 (9th Cir. 2000); see also Trustees for Alaska v. EPA, 749 F.2d 549, 555 (9th Cir. 27 1984) (challenge to EPA regulation mooted by issuance of revised regulations). 28 -6ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 14 of 22 Page ID #:346 1 Here, the University's repeal of the Security Fees Policy is permanent. The 2 University chose not to apply the Security Fees Policy to Plaintiffs and has since 3 repealed the policy. Chavez Decl. ? 2-3. The University's actions with respect to 4 the Security Fees Policy have been "fully supportive of First Amendment rights" 5 and have addressed "all of the [allegedly] objectionable measures" Plaintiffs raise. 6 See White, 227 F.3d at 1243. Since the University informed Plaintiffs that they 7 would not be subject to fees, it has "not engaged in conduct similar to that 8 challenged by the [P]laintiffs here." See id. Plaintiffs' claims are moot. 9 Because Plaintiffs lack Article IIII standing to bring their claims challenging 10 the Security Fees Policy and because, in any event, these claims are moot, the 11 claims fail as a matter of law. The Court lacks jurisdiction to hear them. 12 II. 13 Plaintiffs' Third and Fourth Claims, Based on Alleged Failure to Prevent Third Parties from Blocking Theater Entrances, Fail as a Matter of Law 14 A. Plaintiffs' Third Claim, Under the First Amendment, Fails 15 The operative allegation of Plaintiffs' third claim, for violation of their First 16 Amendment rights, is that the Administrator Defendants "allowed the protestors to 17 engage in an unlawful assembly and to block ingress and egress to the theater." 18 Complt. ? 15; see also id. ? 146 ("The University police officers did not take any 19 action to stop the protestors from blocking access to the Free Speech Event or to 20 otherwise assist interested individuals in gaining access to the event."); id. ? 151 21 ("The University police officers, pursuant to the orders of Defendants Covino and 22 Wade-McKee, did not take any action to stop the protestors from blocking the back 23 doors of the Student Union."); id. ? 174 ("The Defendants violated Plaintiffs' 24 freedom of speech by their failure and refusal to comply with their duty to ensure 25 that students have free ingress and egress to campus building and scheduled 26 events."). Thus, Plaintiffs allege, in their third claim, that "Defendants were 27 required to take reasonable action to protect persons exercising their constitutional 28 rights, including Plaintiffs, from unlawful, disorderly and disruptive conduct. By -7ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 15 of 22 Page ID #:347 1 failing to do so, the Defendants violated Plaintiffs' rights protected by the First 2 Amendment." Id. ? 258; see also id. ? 264 ("By refusing to protect Plaintiffs' 3 speech activity and permitting protestors to engage in unlawful, disorderly, and 4 disruptive conduct designed to silence Plaintiffs' message based on its content and 5 viewpoint, the Defendants have violated Plaintiffs' First Amendment right to 6 freedom of speech."). 7 Government actors are not, however, liable for failure to protect individuals 8 from interference by third parties with their exercise of First Amendment rights. 9 This principle is derived from DeShaney v. Winnebago County Department of Social 10 Services, 489 U.S. 189 (1989), in which the Supreme Court held that the Due 11 Process Clause does not impose an affirmative duty on the state to protect a person 12 from private violence unless that person is in state custody. Id. at 197-200. The 13 Court reasoned that the Due Process Clause, like the First Amendment, is "phrased 14 as a limitation on the State's power to act, not as a guarantee of certain minimal 15 levels of safety and security." Id. at 195. Thus, the clause "generally confer[s] no 16 affirmative right to governmental aid, even where such aid may be necessary to 17 secure life, liberty, or property interests of which the government itself may not 18 deprive the individual." Id. at 196. 19 Courts have applied DeShaney's reasoning in the First Amendment context, 20 holding that the state does not have an affirmative obligation to assist citizens in 21 exercising their First Amendment rights or to prevent others from interfering with 22 those rights. For example, in Pietrangelo v. Alvas Corp., 664 F. Supp. 2d 420 (D. 23 Vt. 2009), plaintiff alleged that he was assaulted while picketing and sued the city 24 for failing to protect his exercise of First Amendment rights. Id. at 432-33, aff'd, 25 487 Fed. Appx. 629 (2d Cir. 2012). The court, construing the complaint as asserting 26 a substantive due process claim, held that the state had no affirmative duty to protect 27 the individual against private violence, regardless of whether he was exercising his 28 First Amendment rights at the time. Id.; see also Haitian Refugee Ctr., Inc. v. -8ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 16 of 22 Page ID #:348 1 Baker, 953 F.2d 1498, 1513-14 (11th Cir. 1992) ("[t]he Constitution ... does not 2 require the Government to assist the holder of a constitutional right in the exercise 3 of [the] right" of freedom of associate); Tater-Alexander v. Amerjan, 2011 WL 4 319012, at *13 (E.D. Cal. Jan. 28, 2011) (police officers do not have an "affirmative 5 obligation to investigate a crime in a particular way or to protect one citizen from 6 another even when one citizen deprives the other of liberty of property" in order to 7 protect the citizen's First Amendment right to petition the Government for a redress 8 of grievances); see also Nelson v. Streeter, 16 F.3d 145, 150 (7th Cir. 1994) 9 (suggesting that DeShaney implies "that the police do not have a constitutionally 10 enforceable duty to protect an artist and the populace from a mob" angry about the 11 content of the artist's work). As these cases make clear, the state has no affirmative 12 duty to protect individuals, such as Plaintiffs, from interference with their First 13 Amendment rights by third parties.3 14 Here, Plaintiffs' claim is not that the Administrator Defendants took any 15 affirmative act that infringed on their free speech rights, but rather that the 16 Administrator Defendants failed to prevent third parties from interfering with their 17 rights and failed to assist Plaintiffs in the exercise of their rights.4 Under DeShaney 18 19 3 Plaintiffs' allegation that the Administrator Defendants failed to enforce CSU20 LA's policies or state and local laws does not save their First Amendment claim. 21 See DeShaney, 489 U.S. at 201-202 (holding that claim that government may have had a "duty under state tort law to provide [the plaintiff] with adequate protection" 22 did not support a constitutional claim); Jacobs v. Clark Cnty. Sch. Dist., 526 U.S. 23 419, 441 (9th Cir. 2008) (holding that defendants' alleged violation of their own regulation did not give rise to a constitutional claim). 24 4 Plaintiffs refer repeatedly in their Complaint to a "heckler's veto." See, e.g., 25 Complt. ? ? 173, 257, 259-261. But a "heckler's veto" arises when the government 26 itself takes action to silence a speaker due to an anticipated disorderly or violent reaction of his audience. See Rosenbaum v. City and County of San Francisco, 484 27 F.3d 1142, 1158 (9th Cir. 2007). Here, Plaintiffs allege only that the Administrator 28 Defendants failed to prevent others from interfering with Shapiro's speech. -9ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 17 of 22 Page ID #:349 1 and its progeny, the Administrator Defendants had no constitutional duty to do 2 either. Plaintiffs' third claim therefore fails as a matter of law.5 B. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Plaintiffs allege, in conclusory terms, that the Administrator Defendants denied them equal protection of the laws by failing, due to the viewpoints to be expressed by Plaintiffs, to enforce against student and faculty protestors various laws and university policies concerning access to campus buildings. See, e.g., Complt. ?? 15, 172, 278. But Plaintiffs allege no actual facts whatsoever with respect to the Administrator Defendants' enforcement of those laws and policies in any similar circumstances, involving either the same or different viewpoints from those expressed by Plaintiffs. Nowhere do Plaintiffs allege that, in another situation involving a mass protest by students and faculty concerning an invited speaker-- where, as Plaintiffs allege, "hundreds of protestors flooded the University's Student Union" and "linked arms in front of the doors," id. ?? 11, 143--the Administrator Defendants acted differently than they did here. Indeed, Plaintiffs do not even allege that similar circumstances have ever arisen on the CSU-LA campus. Their failure to make such factual allegations is fatal to their equal protection claim. 18 19 20 21 22 23 24 Plaintiffs' Fourth Claim, Under Equal Protection, Fails "Conclusory allegations of discrimination are insufficient unless they are supported by facts that may prove invidious discriminatory intent or purpose." Love v. Hensley, 2010 WL 1626117, at *4 (S.D. Cal. Apr. 21, 2010) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)). Therefore, "when an equal protection claim is alleged, the plaintiff must plead facts to show that the defendant 'acted in a discriminatory manner and that the discrimination was intentional.'" Love, at *4 (quoting FDIC v. Henderson, 940 F.2d 25 26 5 Faced with a potentially volatile situation, the University did not take action to 27 silence any speaker. Both Shapiro and the protestors were able to speak, and 28 conveyed their respective views, without University intervention. -10ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 18 of 22 Page ID #:350 1 465, 471 (9th Cir. 1991)); see also Yassin v. Corr. Corp. of Am., 2011 WL 4501403, 2 at *6 (S.D. Cal. Sept. 27, 2011) ("[C]onclusory allegations of discrimination are 3 insufficient to withstand a motion to dismiss, unless they are supported by facts that 4 may prove invidious discriminatory intent or purpose."). 5 Moreover, to state an equal protection claim, "the plaintiff must set forth non- 6 conclusory allegations of discrimination supported by reference to particular acts, 7 practices, or policies demonstrating that he has been treated differently from others 8 with whom he is similarly situated and that such unequal treatment was the result of 9 intentional or purposeful discrimination." Switzer v. Weaver, 2012 WL 6964863, at 10 *6 (W.D. Va. Nov. 5, 2012), aff'd, 521 Fed. Appx. 208 (4th Cir. 2013); see also 11 Icon Groupe, LLC v. Washington Cty., 948 F. Supp. 2d 1202, 1207 (D. Or. 2013) 12 ("[T]o state a claim under the Equal Protection Clause, a plaintiff must establish that 13 he was treated differently from other similarly situated individuals with respect to a 14 governmental act, statute, or regulation."). And, "[i]n addition to the showing of 15 discriminatory purpose and effect, plaintiffs seeking to enjoin alleged selective 16 enforcement must demonstrate the police misconduct is part of a 'policy, plan, or a 17 pervasive pattern'." Rosenbaum, 484 F.3d at 1153. Here, Plaintiffs have not 18 alleged even the occurrence of similar events on the CSU-LA campus, far less that 19 the Administrator Defendants acted differently in similar circumstances that 20 involved viewpoints different from Plaintiffs' or that their conduct was part of any 21 policy, plan, or pervasive pattern. 22 The court's decision in Icon Groupe is instructive. There, the plaintiff, a 23 company engaged in the sign business, alleged that it had been discriminated against 24 in the County's enforcement of an ordinance that required a permit to erect 25 freestanding signs. 948 F. Supp. 2d at 1205, 1208. The court dismissed the 26 plaintiff's equal protection claim because it had not alleged, in other than conclusory 27 terms, that the County would have approved a permit for any similarly situated 28 company. Id. at 1208. "[A]lthough [the plaintiff] generally state[d] that it -11ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 19 of 22 Page ID #:351 1 believe[d] substantially-similar applications ... have, or would have been, approved, 2 it fail[ed] to allege any facts to support this conclusory statement." Id. The court 3 held that, "in the absence of factual allegations establishing that Defendants have 4 approved other applications under the safety-sign exemption, [plaintiff] has failed to 5 state a viable claim for violation of the Equal Protection Clause." Id. 6 Here, similarly, Plaintiffs have failed to allege facts to support their 7 conclusory assertions that the Administrator Defendants discriminated against them 8 based on their viewpoint. In the absence of factual allegations establishing that the 9 Administrator Defendants acted differently in similar circumstances, involving 10 hundreds of faculty and student protestors, Plaintiffs have failed to state an equal 11 protection claim. 12 III. 13 14 15 16 Plaintiffs' Claims for Damages Should Be Dismissed For the reasons discussed above, Plaintiffs' constitutional claims against the Administrator Defendants are meritless and should be dismissed in their entirety. In the alternative, their claims for damages against the Administrator Defendants must be dismissed for the reasons set forth below. 17 18 19 20 21 22 23 24 A. Plaintiffs Allege No Actual Harm from Enforcement of the Security Fees Policy Plaintiffs affirmatively allege that the Administrator Defendants did not charge them any fee pursuant to the Security Fees Policy. Complt. ?? 8, 128. Thus, the Complaint affirmatively demonstrates that Plaintiffs suffered no actual damages caused by that policy. Accordingly, Plaintiffs' claims for damages on their first and second claims should be dismissed with prejudice. 25 26 27 28 -12ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 20 of 22 Page ID #:352 1 2 3 B. The Administrator Defendants Are Entitled to Qualified Immunity Because They Did Not Violate Any Clearly Established Law Plaintiffs' claims for damages on their third and fourth claims for relief 4 should be dismissed on the basis of qualified immunity, because the constitutional 5 rights Plaintiffs claim were violated were far from clearly established. 6 "State officials are entitled to qualified immunity from suits for damages 7 'insofar as their conduct does not violate clearly established statutory or 8 constitutional rights of which a reasonable person would have known.'" Krainski v. 9 Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 968 (9th Cir. 10 2010) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine 11 whether an official is entitled to qualified immunity, courts ask: (1) whether, taken 12 in the light most favorable to the party asserting the injury, the facts alleged show 13 the official's conduct violated a constitutional right; and (2) if so, whether the right 14 was clearly established in light of the specific context of the case. Saucier v. Katz, 15 533 U.S. 194, 201 (2001). "For a constitutional right to be clearly established, its 16 contours must be sufficiently clear that a reasonable official would understand that 17 what he is doing violates that right." Hope v. Pelzer, 536 U.S. 730, 739 (2002) 18 (internal quotation marks omitted). It is within a court's "sound discretion" to 19 address these two prongs in any sequence it sees fit. Pearson v. Callahan, 555 U.S. 20 223, 236 (2009). Here, for the reasons explained above, a reasonable official in any 21 of the Administrator Defendants' positions would have had no reason to think 22 anything he was doing or refraining from doing violated Plaintiffs' constitutional 23 rights. Far from being "clearly established" that the Defendants had a constitutional 24 duty to prevent others from interfering with Plaintiffs' speech, it was clearly 25 established that they had no such duty. Courts have found that university officials have qualified immunity even from 26 27 due process claims that are based on allegations that the officials have failed to 28 protect the plaintiffs from violent interference with their rights by third parties. For -13ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 21 of 22 Page ID #:353 1 example, in Melendez-Garcia v. Sanchez, 629 F.3d 25 (1st Cir. 2010), an ROTC 2 officer was assaulted during a student protest at the University of Puerto Rico and 3 sued university officials under ? 1983 for alleged failure to adequately provide 4 security for the ROTC. The First Circuit held that the university officials were 5 entitled to qualified immunity on the plaintiffs' constitutional claims because, under 6 DeShaney, "[a] state's failure to protect an individual against private violence 7 simply does not constitute a violation of the Due Process Clause." Id. at 36 (quoting 8 DeShaney, 489 U.S. at 197). The court recognized that "a university, like a local 9 government, must choose how to use limited resources," and thus it would not have 10 been clear to a reasonable official that CSU-LA's security decisions violated the 11 Plaintiffs' right to substantive due process. Melendez-Garcia, 629 F.3d at 37. 12 Similarly, the Eleventh Circuit held that university officials were entitled to 13 qualified immunity against a claim that they deprived a student killed in a school 14 shooting of due process rights by failing to protect him from the known threats of 15 another student. Alexander v. Univ. of N. Fla., 39 F.3d 290, 292 (11th Cir. 1994) 16 (per curiam). 17 CONCLUSION 18 For all the foregoing reasons, Plaintiffs' claims against the Administrator 19 Defendants should be dismissed in their entirety with prejudice. In the alternative, 20 Plaintiffs' claims for damages against these defendants should be dismissed with 21 prejudice. 22 23 24 25 26 27 28 -14ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474 Case 2:16-cv-03474-DSF-JPR Document 43 Filed 07/14/16 Page 22 of 22 Page ID #:354 Respectfully submitted, 1 2 3 4 DATED: July 14, 2016 MUNGER, TOLLES & OLSON LLP BRADLEY S. PHILLIPS JOHN F. MULLER 5 6 7 8 9 By: /s/ Bradley S. Phillips BRADLEY S. PHILLIPS Attorneys for Defendants William Covino, Nancy Wada-McKee, Lisa Chavez, and John Ortiz 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15ADMINISTRATOR DEFENDANTS' MOTION TO DISMISS 2:16-cv-03474