Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 1 of 135 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT C.A. NO. 16-55770 AMERICAN NEWS AND INFORMATION SERVICES, INC., ET AL., Plaintiffs-Appellants, v. WILLIAM D. GORE, ET AL., Defendants-Appellees. PLAINTIFFS-APPELLANTS AMERICAN NEWS AND INFORMATION SERVICES, INC., ET AL. OPENING BRIEF On Appeal from the United States District Court for the Southern District of California No. 12-cv-02186-BEN-KSC Honorable Roger T. Benitez ______________________________________________ C.D. MICHEL (S.B.N. 144258) MICHEL & ASSOCIATES 180 East Ocean Boulevard, Suite 200 Long Beach, CA 90802 Tel: (562) 216-4444 Fax: (562) 216-4445 EM: cmichel@michellawyers.com RACHEL M. BAIRD (PHV) BAIRD & ASSOCIATE 15 Burlington Road Harwinton, CT 06791 Tel: (860) 605-9340 Fax: (860) 605-9343 EM: rbaird@rachelbairdlaw.com Attorneys for Appellants Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 2 of 135 CORPORATE DISCLOSURE STATEMENT American News and Information Services, Inc. has no parent corporations. Since it has no stock, no publicly held company owns 10% more of its stock. Date: February 22, 2017 Rachel M. Baird & Associate __________________________________ Rachel M. Baird Attorney for Appellant American News and Information Services, Inc. Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 3 of 135 TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT............................................. i TABLE OF AUTHORITIES ....................................................................viii JURISDICTIONAL STATEMENT ............................................................ 1 STATUTORY AND CONSTITUTIONAL AUTHORITIES ...................... 2 ISSUES PRESENTED ............................................................................... 2 STATEMENT OF THE CASE ................................................................... 5 SUMMARY OF THE ARGUMENT ......................................................... 12 ARGUMENT ............................................................................................. 14 I. FIVE SAN DIEGO COUNTY DEPUTIES ARE NOT ENTITLED TO QUALIFIED IMMUNITY FROM THE FIRST AMENDMENT RETALIATION CLAIMS ................ 14 A. Standard Of Review ...................................................... 15 B. Findings Of Probable Cause Do Not Entitle The Deputies To Qualified Immunity ................................ 16 C. The Second Amended Complaint Sufficiently Alleges Retaliation Four Times ................................................ 18 1. Playford’s “no contest” pleas to disturbing another person for the February 28, 2010, and March 9, 2010, arrests after a deadlocked jury mistrial ......................................................... 18 i Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 4 of 135 TABLE OF CONTENTS (con.) Page II. 2. Evidence of retaliatory animus in the February 28, 2010, and March 9, 2010, arrests .................................................................. 21 3. The December 1, 2011, arrest ............................. 24 4. Playford’s recording of police activity was a “but for” cause of his arrests ............................... 27 5. Glik v. Cuniffe, 655 F.3d 78, 80 (1st Cir. 2011), and the media presence ....................................... 29 THREE SAN DIEGO COUNTY SHERIFF DEPUTIES UNLAWFULLY ARRESTED PLAYFORD AT AN ACCCIDENT SCENE ON MAY 25, 2012 ............................ 30 A. Standard Of Review ..................................................... 32 B. The Third Amended Complaint Sufficiently Alleges A Lack Of Probable Cause For The May 25, 2012, Arrest ................................................... 32 1. The SAC and TAC allegations of fact in support of the First Amendment retaliation and Fourth Amendment false arrest claims ..... 33 2. Leiserson v. City of San Diego, 184 Cal. App. 3d 41 (1986), requires findings of fact to determine whether the designation of the May 25, 2012, accident scene as a crime scene was a post hoc justification for retaliatory exclusion ................. 38 ii Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 5 of 135 TABLE OF CONTENTS (con.) Page 3. C. III. The First Amendment prohibits government content- based preference to media with government-issued media credentials ............... 43 California Penal Code § 409.5 Corroborates Playford’s Count One (SAC) First Amendment Retaliation Claim and Count Three (TAC) Fourth Amendment False Arrest Claim ................................. 47 SKOOG V. COUNTY OF CLACKAMAS, 469 F.3d 1221 (9th Cir. 2006) CLEARLY ESTABLISHED THE FOURTH AMENDMENT RIGHT TO BE FREE OF A SEARCH AND SEIZURE OF CAMERAS AND THEIR CONTENTS MOTIVATED BY FIRST AMENDMENT RETALIATION ..................................................................... 49 A. Standard Of Review ..................................................... 49 B. A Seizure Incident To An Arrest Motivated By First Amendment Retaliation Is A Fourth Amendment Violation ....................................................................... 50 IV. THE SEIZURES AND SEARCHES OF CAMERAS AND CONTENTS OWNED BY AMERICAN NEWS ON MARCH 9, 2010, DECEMBER 11, 2011, AND MAY 25, 2012, BY FIVE SAN DIEGO COUNTY DEPUTIES WERE NOT EXEMPT FROM THE PROTECTIONS OF THE FEDERAL PRIVACY PROTECTION ACT ................ 54 A. Standard Of Review ..................................................... 54 B. The Second Amended Complaint Sufficiently Alleges Federal Privacy Protection Act Claims ....................... 54 iii Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 6 of 135 TABLE OF CONTENTS (con.) Page V. C. Application of the PPA Exception To Probable Cause For Resisting, Obstructing, Or Delaying Police Officers In The Performance Of Their Duties Eviscerates The Media’s Right To Record Public Police Activity ......... 56 D. A Caveat To The Exception In The PPA That Prohibits Seizure Even When Probable Cause Exists To Believe The Documentary Materials Relate To A Criminal Offense Committed By The Person Possessing The Materials Applies To The March 9, 2010, December 1, 2011, And May 25, 2012, Seizures Of Playford’s Documentary Materials ......... 58 LAW ENFORCEMENT’S USE OF GOVERNMENT-ISSUED MEDIA CREDENTIALS TO EXCLUDE PLAYFORD FROM ACCESS TO THE MAY 25, 2012, ACCIDENT SCENE AND MEDIA CONFERENCES VIOLATES THE FIRST AMENDMENT ...................................................................... 60 A. Standard Of Law .......................................................... 60 1. Dismissal of Count Three (SAC) First, Fourth, and Fourteenth Amendment failure to train claim against Caldwell ................................................. 60 2. Summary Judgment In Favor of San Diego County on Count Two (TAC) First, Fourth, and Fourteenth Amendment failure to train claim against San Diego County ........................ 61 iv Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 7 of 135 TABLE OF CONTENTS (con.) Page B. VI. San Diego County Was Deliberately Indifferent To The First Amendment Implications Of Its Deputies’ Reliance On San Diego Police Department Government-Issued Media Credentials For Determinations Of Media Access To Law Enforcement Activity And Information ....................... 61 MATERIAL FACTS IN DISPUTE MAY LEAD A REASONABLE TRIER OF FACT TO DETERMINE THAT THE COUNTY OF SAN DIEGO THROUGH THE SHERIFF’S DEPARTMENT PUBLIC INFORMATION OFFICER JAN CALDWELL RETALIATED AGAINST PLAYFORD FOR HIS EXERCISE OF FIRST AMENDMENT RIGHTS ....................................................... 66 A. Standard Of Law .......................................................... 66 B. The Case Against Caldwell For First Amendment Retaliation .................................................................... 67 C. The Discrepancies In Caldwell’s Testimony And Two Declarations Corroborate Playford’s First Amendment Retaliation Claims And Create Material Issues Of Fact ............................................................... 68 1. Caldwell’s May 18, 2016, Declaration ............... 68 2. The March 16, 2016, Deposition ........................ 69 3. The discrepancies between Caldwell’s deposition testimony and declaration addressed in Playford’s opposition to summary judgment ..... 71 v Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 8 of 135 TABLE OF CONTENTS (con.) Page 4. Caldwell’s March 18, 2016, supplemental declaration and May 31, 2012, email ................. 72 VII. DUMANIS IS NOT ENTITLED TO IMMUNITY FOR HER SELECTIVE RECOGNITION OF SAN DIEGO POLICE DEPARTMENT GOVERNMENT-ISSUED MEDIA CREDENTIALS IN HER DECISION AND POLICY TO EXCLUDE PLAYFORD FROM A PRESS CONFERENCE ..................................................................... 78 A. Standard Of Review ..................................................... 78 B. The District Attorney Acted Administratively To Deny Playford Access To The Press Conference In Violation Of The First Amendment ............................................ 80 C. The District Attorney Is Not Entitled To Qualified Immunity ...................................................................... 81 1. Playford is a member of the media .................... 82 2. The exclusion of a member of the media from a press conference violates the First Amendment ......................................................... 83 VIII. THE DISTRICT COURT WRONGLY DISMISSED ALL CLAIMS BY AMERICAN NEWS ......................................... 88 A. Standard Of Review ...................................................... 88 B. American News Has Standing To Assert Claims ....... 88 CONCLUSION ………………………………………………………………… 91 vi Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 9 of 135 TABLE OF CONTENTS (con.) Page STATEMENT OF RELATED CASES ……………………………………… 92 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM vii Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 10 of 135 TABLE OF AUTHORITIES Cases Page(s) Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013)............................. 14, 15, 16, 17, 18, 30 American Broadcasting Companies, Inc. v. Cuomo, 570 F.2d 1080 (2nd Cir. 1977)………..…..………...…..................…84 Ashcroft v. Iqbal, 556 U.S. 662 (2009)..........................................................................79 Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986)..........................................................88 Balint v. Carson City, 180 F.3d 1047 (9th Cir. 1999)…….............................................61, 66 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) …………………………………….......................79 Borreca v. Fasi, 369 F.Supp. 906 (D. Haw. 1974)..........................................45, 46, 84 Branzburg v. Hayes, 408 U.S. 665 (1972)………………….................................44, 82, 83, 87 Bridges v. State of Cal., 314 U.S. 252 (1941)…………………………..…………………………13 Buckley v. Fitzsimmons, 509 U.S. 259 (1993)...…………..…………………………13 Burns v. Reed, 500 U.S. 478 (1991)……...................................................................81 vii     Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 11 of 135 TABLE OF AUTHORITIES (con.) Cases Page(s) Chavez v. City of Oakland, 414 F.App'x 939 (9th Cir. 2011)…………….................................…45 Chavez v. City of Oakland, 2009 WL 1537875 (N.D. Cal. June 2, 2009)…………..……...44 Conley v. Gibson, 355 U.S. 41 (1957) .....................................................................32, 60 Connick v. Thompson, 563 U.S. 51 (2011) ..……..................................................................64 Decker v. Advantage Fund, Ltd., 362 F.3d 593 (9th Cir. 2004) …...…………………………………32, 60 Eberhard v. California Highway Patrol, 2015 WL 6871750 (N.D. Cal. Nov. 9, 2015) …...………………………47 Emard v. Cnty of Orange, 2007 WL 1493815 (Cal. Ct. App. May 23, 2007)….………………..84 Estes v. State of Texas, 381 U.S. 532 (1965) ………………………...…………………………..29 Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013) …...................................15, 17, 20, 24 Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).…..........................................................29 viii     Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 12 of 135 TABLE OF AUTHORITIES (con.) Cases Page(s) Goldstein v. City of Long Beach, 715 F.3d 750 (9th Cir. 2013) ………………………………...………..86 Gore v. San Diego County Civil Service Commission, 2014 WL 4628022 (Cal. Ct. App. Sept. 17, 2014)……..........................75 Groten v. California, 251 F.3d 844 (9th Cir. 2001) …………...…..…………………….16, 50 Hawks v. Cnty. of Butte, 34 F.3d 1072 (9th Cir. 1994) ……...………………………….81, 85, 86 Houchins v. KQED, 438 U.S. 1 (1978) ……………………………..………………………...44 In re: Grand Jury Witnesses, 322 F. Supp. 573 (N.D. Cal. 1970) …………………..…………….…82 In re: Muhammed C., 95 Cal. App. 4th 1325 (6th Dist. 2002) ..….…................................43 Kahle v. Gonzalez, 487 F.3d 697 (9th Cir. 2007) ….….…..............................................32 Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621 (9Th Cir. 1988) ………...............................................88 Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262 (9th Cir. 1991)…....….……........................................19 Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) ...................................................79, 88 ix    Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 13 of 135 TABLE OF AUTHORITIES (con.) Cases Page(s) Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012) ………...…...................2, 15, 27, 49, 54 Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993)……………..………………………………………88 Leiserson v. City of San Diego, 184 Cal. App. 3d 41 (1986)……..…...… 38, 39, 40, 41, 47, 48, 49, 68 Los Angeles Free Press, Inc. v. City of Los Angeles, 9 Cal. App. 3d 448 (2d Dist. 1970)….……….……...44, 45, 46, 83, 84 Lovell v. City of Griffin, Ga, 303 U.S. 444 (1983)...............……………………………………...82, 87 Marder v. Lopez, 450 F.3d 445 (9th Cir. 2006)............................................................79 Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283 (9th Cir. 1999)…………....….……......................85, 87 Mills v. Alabama, 384 U.S. 214 (1966)…………………………………..…………..….....83 Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978)..........................................................................87 Mueller v. Auker, 576 F.3d 979 (9th Cir. 2009) ……………………………..…….….....81 x    Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 14 of 135 TABLE OF AUTHORITIES (con.) Cases Page(s) Murdock v. Pennsylvania, 319 U.S. 105 (1943)……………………………...……….....................83 Olsen v. Idaho State Bd. of Med., 363 F.3d 916 (9th Cir. 2004)............................................................80 Pell v. Procunier, 417 U.S. 817 (1974)……..………………………………..……….....84, 87 People v. Williams, 58 Cal. 4th 197 (2013).………..…………..........................................19 Pinnavaia v. F.B.I., 218 F. App'x 646 (9th Cir. 2007) ..….….……..................................54 Pulliam v. Allen, 466 U.S. 522 (1984)....…………..………………………………………88 Reichle v. Howards, 566 U.S. 658 (2012) …………………………...………………………..16 Rouzan v. Dorta, 2014 WL 1716094 (C.D. Cal. Mar. 12, 2014)....………………88 Sanders v. Brown, 504 F.3d 903 (9th Cir. 2007)............................................................79 Saucier v. Katz, 533 U.S. 194 (2009)…………...………........................................14, 20 Shah v. County of Los Angeles., 797 F.2d 743 (9th Cir. 1986)…….....................................................88 xi    Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 15 of 135 TABLE OF AUTHORITIES (con.) Cases Page(s) Skoog v. Cnty. of Clackamas, 469 F.3d 1221 (9th Cir. 2006)..…2, 14, 15, 17, 20, 49, 50, 51, 52, 53 Sloman v. Tadlock, 21 F.3d 1462 (9th Cir. 1994).………...…..........................................85 Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005)...…...…...............................................43 Sommatino v. United States, 255 F.3d 704 (9th Cir. 2011)…………...….......................................54 Stevens v. New York Racing Ass'n. Inc., 665 F. Supp. 164 (E.D. N.Y. 1987)…………...….............................54 Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719 (1980) …………….…….........……………………….88 Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d 1110 (9th Cir. 2003)....................................................61, 66 Telemundo of Los Angeles v. City of Los Angeles, 283 F. Supp.2d 1095 (C.D. Cal 2003)………....…...…...............84, 85 Times-Picayune Pub. Corp. v. Lee, 1988 WL 36491 (E.D. La. 1988).....…………………………...………85 United States v. Ritchie, 342 F.3d 903 (9th Cir. 2003) ….…...................................................33 xii     Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 16 of 135 TABLE OF AUTHORITIES (con.) Cases Page(s) United Teachers of Dade v. Stierheim, 213 F. Supp.2d 1368 (S.D. Fla. 2002).…..…............……................84 Veth Mam v. City of Fullerton, 2013 WL 951401 (C.D. Cal. Mar. 12, 2013)……….........................23 Watson v. Cronin, 384 F. Supp. 652 (D. Colo. 1974)……………….…...............44, 45, 46 Westinghouse Broadcasting Co., v. Dukakis, 409 F. Supp. 895 (D. Mass. 1976) …..…..............…….....................85 Yount v. City of Sacramento, 43 Cal. 4th 885 (2008)….………..………................……..................43 Zimmerman v. City of Oakland, 255 F.3d 734 (9th Cir. 2001)….…….…..……......................32, 54, 61 Books, Articles, Reports Tribune Publishing, Ramona Sentinel, Karen Brainard www.ramonasentinel.com/2012/05/25/4dead-in-3-vehicle-sr67collison-reports-chp/, to a new link http://www.sandiegouniontribune.com/ramona-sentinel/sdrs-fourvictims-identified-in-fatal-highway-67-crash-2012may25-story, html.....................................………………………………………………33 Statutes Cal. Penal Code § 148(a)(1)……................................................…24, 42 Cal. Penal Code § 415(2)……………………………………….…...........18 xiii     Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 17 of 135 TABLE OF AUTHORITIES (con.) Statutes Page(s) Cal. Penal Code § 409.5.....................................................47, 48, 49, 82 Cal. Penal Code § 409.5(d)..........................................43, 44, 45, 65, 80 Cal. Penal Code § 1016...................................................................19,20 Fed. R. Civ. P. 12(b)(6) .........................1, 15, 32, 49, 54, 60, 79, 80, 88 Fed. R. Civ. P. 56(c)…...................................................................61, 66 28 U.S.C. § 1291....................................................................................2 28 U.S.C. § 1331....................................................................................1 28 U.S.C. § 1343(a)(3)............................................................................3 28 U.S.C. § 2201....................................................................................1 42 U.S.C. § 1983.……………………………………………..........1, 85, 85 42 U.S.C. § 2000aa.……………………...…………...............1, 55, 56, 59 42 U.S.C. § 2000aa(a)(1)......................................................................56 42 U.S.C. § 2000aa(b)(1)......................................................................59 42 U.S.C. § 2000aa-6.............................................................................1 xiv     Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 18 of 135 11 JURISDICTIONAL STATEMENT The district court Plaintiffs, American News and Information Services, Inc. (“American News”), Edward A. Peruta (“Peruta”), and James C. Playford (“Playford”), filed seven counts presenting federal questions of law arising under the First, Fourth, and Fourteenth Amendments to the United States Constitution, 42 U.SC. § 1983, and the federal Privacy Protection Act, 42 U.S.C. § 2000aa. The basis for jurisdiction in the district court for Plaintiffs’ claims was 42 U.S.C. §§ 1983, 2000aa-6, 28 U.S.C. §§ 1331, 1343(a)(3) and 28 U.S.C. § 2201. This is an appeal from an order dated September 18, 2014, dismissing in part Playford’s claims and the claims of American News and Peruta in their entirety (ER025-ER051) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; an order dated April 10, 2015, dismissing in part Playford’s claims (ER017-ER024) pursuant to Rule 12(b)(6); and an order dated April 28, 2016, granting summary judgment on the remaining claims against San Diego County (SDC), SDC Sheriff William Gore (“Gore”), and SDC Sheriff’s Department Public Information Officer (PIO) Jan Caldwell (“Caldwell”) pursuant to 1   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 19 of 135 Rule 56 and entering final judgment against Playford (ER001-ER016) on April 29, 2016. ER525. American News, Peruta, and Playford filed a timely notice of appeal on May 27, 2016, in accordance with Rules 3 and 4 of the Federal Rules of Appellate Procedure and Circuit Rules 3-1, 3-2, and 34. This Court of Appeals has jurisdiction pursuant to 28 U.S.C. § 1291. See also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (“For claims dismissed with prejudice and without leave to amend, we will not require that they be repled in a subsequent amended complaint to preserve them for appeal.”). STATUTORY AND CONSTITUTIONAL AUTHORITIES All relevant statutory and constitutional authorities appear in the Addendum to this brief. ISSUES PRESENTED I. Whether the right to be free from police action motivated by retaliatory animus but for which there was probable cause remained clearly established in this Circuit by Skoog v. Cnty. of Clackamas when Playford’s First Amendment Retaliation arrest 2   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 20 of 135 claims arose on February 28, 2010, March 9, 2010, December 1, 2011, and May 25, 2012. II. Whether Playford sufficiently alleges that three San Diego County deputies issued an unlawful order on May 25, 2012, motivated by retaliatory animus to exclude him from video-recording a multivehicle accident scene when Playford possessed American News media credentials and other media representatives were allowed access to the scene. III. Whether five San Diego County deputies are entitled to qualified immunity for seizing cameras from Playford on March 9, 2010, December 1, 2011, and May 25, 2012, and searching their contents. IV. Whether the documentary materials seized from Playford while reporting on matters of public concern on March 9, 2010, December 11, 2011, and May 25, 2012, were protected by the federal Privacy Protection Act. V. Whether San Diego County was deliberately indifferent to the First Amendment implications of its deputies’ reliance on San Diego Police Department government-issued media credentials for 3   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 21 of 135 determinations of media access to law enforcement activity and information. VI. Whether contradictions in testimony offered by San Diego County Sheriff’s Department Public Information Officer Jan Caldwell during a deposition and in two affidavits concerning the distribution of a photograph of Playford and American News President Edward Peruta left material issues of fact in dispute where a reasonable jury could find in Playford’s favor on his First Amendment retaliation and failure to train claims against San Diego County and Caldwell. VII. Whether San Diego County District Attorney Bonnie Dumanis is entitled to immunity for her selective recognition of San Diego Police Department government-issued media credentials to determine access to media conferences. VIII. Whether American News should have been dismissed from the case when violations against Playford and Peruta as its dulyauthorized representatives derive from media credentials issued by American News. 4   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 22 of 135 STATEMENT OF THE CASE James C. Playford is a freelance videographer who is often the first camera or the only camera at scenes of public police activity. ER369. In 2009 his relationships with the San Diego Police Department (SDPD) and the SDC Sheriff’s Department deteriorated after he videorecorded and posted an incident of excessive police force and evidence of a brothel in McGonigle Canyon to the embarrassment of SDC law enforcement. ER369-ER371. Shortly thereafter Playford received a notice from the SDPD warning him that possession of SDPD government-issued media credentials is a privilege, not a right, which could be revoked if Playford refused to obey an order given by a police officer at a scene, jeopardized public safety, or interfered with an investigation. ER371-ER372. The warning letter did not reference any specific conduct and Playford had not been arrested. ER371. The SDPD revoked Playford’s media credentials on January 11, 2010. ER373. American News issued Playford media credentials on February 23, 2010, as a duly authorized representative. ER375. Four arrests for resisting, obstructing or delaying an officer in the performance of duties followed from Playford’s attempts to video-record 5   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 23 of 135 police activity on February 28, 2010 (ER378), March 9, 2010 (ER380), December 1, 2011 (ER383), and May 25, 2012. ER387. The February 28, 2010, and March 9, 2010, arrests were combined in one trial that resulted in a deadlocked jury. ER346, ER394. Playford entered “no contest” pleas to making loud and disturbing noise to resolve his first two arrests. ER353. He was convicted of resisting or obstructing or delaying an officer at the December 1, 2011, incident (ER275) and found “not guilty” for the same charge arising from the May 25, 2012, incident. ER403. In a May 31, 2012, email SDC PIO Caldwell refers to Playford as a “well-known ‘journalist’” who has been a “chronic problem.” ER514. In a newspaper interview, Caldwell stated: Well, Playford is known amongst the deputies, especially in North County, because he’s an issue. If I’m on scene, there’s an excellent chance that Playford will be there. Every contact I’ve had with him has been negative. ER141, ER396. At a Society of Professional Journalists’ Media Panel Discussion, Caldwell commented: And there’s only one Sheriff’s Department in town and you can go talk to all the deputies all you want, but there’s one Public Affairs Director, just be nice to me. If you’re nice to me and when I 6   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 24 of 135 say I’m sorry I don’t know the answer to that but I’m sorry I can’t talk about that, I’m not lying, I’m not lying to you. ER142-ER143, ER145-ER146, ER396. In deposition testimony and two affidavits Caldwell refers to a photograph of Playford that she provided only to a sheriff’s department headquarters lobby deputy as a warning to be aware that Playford was not the media but in a May 31, 2012, email relied on specifically by Caldwell to show that the photograph could not have been related to the four arrests because it was distributed after the arrests and only to the lobby deputy, the email distribution list includes a SDC Sheriff’s Department commander and the content of the email presumes that Playford’s photograph will be made available to deputies in the field. ER135-ER136, ER199, ER513ER514. The May 31, 2012, email contradicts Caldwell’s deposition testimony and two affidavits and leaves unanswered details about the photograph that was distributed to the headquarters lobby deputy and left in plain view of department staff and visitors to the building as Playford observed in 2009 or 2010 when he photographed the photograph in the lobby prior to his four arrests. ER059, ER177ER178. 7   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 25 of 135  Original, Amended, and Second Amended Complaints Playford and American News filed an original Complaint in six counts on September 9, 2012, in the Southern District of California. ER518. The Honorable Irma E. Gonzalez dismissed the Complaint without prejudice and granted leave to amend. ER520. An Amended Complaint was filed on April 15, 2013, in six counts. (ER520). SDC Defendants Gore, Caldwell, District Attorney Bonnie Dumanis (“Dumanis”), and five SDC deputies, Thomas Seiver (“Seiver”), Brendan Cook (“Cook”), Jesse Allensworth (“Allensworth”), James Breneman (“Breneman”), and Michael Proctor (“Proctor”) moved to dismiss. ER520. Prior to issuance of a ruling on the motions, Playford received a “not guilty” verdict in the trial on his May 25, 2012, arrest for resisting an officer. ER451. The Honorable Roger T. Benetiz granted Playford’s motion to amend and supplement the pleadings to add the “not guilty” verdict and Count Seven for Fourth Amendment false arrest against Allensworth, Breneman, and Proctor. ER521. Playford filed the SAC on January 14, 2014. ER521.  Second Amended Complaint September 18, 2014, District Court Orders Appealed Count One First Amendment Retaliation 8   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 26 of 135 Count Two Count Three Count Six Count Seven Fourth Amendment Illegal Seizure and Search First and Fourth Amendment Failure to Train Federal Privacy Protection Act Fourth Amendment False Arrest In an Order dated September 18, 2014, the district court granted qualified immunity to Seiver, Cook, Allensworth, Breneman, and Proctor for the Count One (SAC) First Amendment retaliation claims arising from the challenged conduct on February 28, 2010, March 9, 2010, December 1, 2011, and May 25, 2012, finding uncertainty whether “existing precedent” clearly establishes the right to be free of a retaliatory arrest otherwise supported by probable cause. ER039ER040. The First Amendment retaliation and First and Fourth Amendment failure to train claims against Dumanis were dismissed on immunity grounds. ER049-ER050. The district court granted Seiver, Cook, Allensworth, Breneman, and Proctor qualified immunity for the Count Three Fourth Amendment claims arising from the seizure of Playford’s cameras and search of the documentary contents on March 9, 2010, December 1, 2011, and May 25, 2012. ER040-ER042. The federal Privacy Protection Act claim was dismissed against all Defendants. 9   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 27 of 135 ER045-ER046. Playford’s Count Seven Fourth Amendment false arrest claim was dismissed with leave to amend. ER046-ER048.  Third Amended Complaint April 10, 2015, District Court Order Appealed Count Seven Fourth Amendment False Arrest The Order granted Allensworth, Breneman, and Proctor qualified immunity and dismissal finding: Defendants had been previously advised Playford was not a member of the media and he lacked government-issued media credentials. When Playford was repeatedly advised that he was not permitted there, he objected and refused to leave. Under these circumstances, it was not clearly established that the order to leave was unlawful. ER023. The seven-page Order did not reference or recognize the undisputed fact that Ramona Sentinel reporter Karen Brainard and a local NBC news crew were allowed access to the scene. ER015-ER024, ER389-ER390. The district court’s order the position taken by Caldwell at a Society of Professional Journalists’ Media Discussion panel where she commented on government-approved versus non-governmentapproved media: Now we’re getting into a whole nother area with regard to the, and this may be a panel for next year, journalism credentials and who should have them and should we have them and I would al… 10   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 28 of 135 I’m gonna throw that back on you all in a minute to find out what you think.” ER 142-ER143, ER145-ER146, ER396.  Third Amended Complaint April 28, 2016, District Order Appealed Count One First Amendment Retaliation Count Two First and Fourth Amendment Failure to Train The claims remaining at summary judgment were Count One (TAC) First Amendment retaliation against SDC, Gore, and Caldwell (ER398-ER400) and Count Two (TAC) First and Fourth Amendment failure to train against SDC and Gore. ER400-ER402. Material issues of fact remain in dispute regarding the SDC’s deliberate indifference to the First Amendment implications of its deputies’ reliance on SDPD government-issued media credentials for determinations of media access to public law enforcement activity and information. ER400ER402. In its Order the district court held that the record did not support a pattern to support a deficiency in training. ER016. In its Order the district court held that there was “strong evidence of probable cause and weak evidence of retaliatory motive by Caldwell. ER014. 11   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 29 of 135 SUMMARY OF THE ARGUMENT Playford and American News brought an action in seven counts to challenge a system in San Diego County that defines valid media as individuals and entities issued credentials by the government. In San Diego County, Sheriff’s Department Public Information Officer Jan Caldwell is comfortable telling a Society of Professional Journalists that they need to be nice to her because she is the PIO in the only sheriff’s department in town. ER142-ER143, ER145-ER146. The same PIO characterizes Playford as a “journalist” in quotation marks noting his “chronic issues” (ER514) with the department and negative interactions with the PIO whenever she sees him at a scene. ER141. Playford was arrested four times. Three of the arrests arose from his attempts to film news-worthy events of police activity from areas not closed to the public. The last arrest on May 25, 2012, occurred when Playford defied an unlawful order excluding him from an area open to other media but closed to Playford because he did not have governmentissued media credentials. ER387-ER392. The sheriff’s department PIO has an image of a journalist – a journalist is nice to her, does not question her when she says she cannot answer questions, and believes 12   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 30 of 135 her because she was employed by the Federal Bureau of Investigation for thirty-two years. ER396. To the same audience of journalists the PIO asked: Does that give you the right because you blog in your fuzzy slippers out of your bedroom, and you don’t go out, and you haven’t gotten that degree? Should you be called a journalist or should you be like Pauline ??? who graduated from Journalism school and has been doing a long time or J.W or Dennis I mean are you on the same par? ER396. Thomas Jefferson shared the PIO’s sentiment about certain journalists. His statements on the subject are compared in Bridges v. State of Cal., 314 U.S. 252, 271 n. 16 (1941) (internal citation omitted): I deplore * * * the putrid state into which our newspapers have passed, and the malignity, the vulgarity, and mendacious spirit of those who write them. * * * These ordures are rapidly depraving the public taste. It is however an evil for which there is no remedy, our liberty depends on the freedom of the press, and that cannot be limited without being lost. The concept of government-issued media credentials as they exist in San Diego County is as foreign to liberty and the First Amendment as was the abridgement of a free press to the framers of the Bill of Rights. For defying this system of government-validated media, Playford and American News suffered as alleged in the complaints filed below. 13   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 31 of 135 ARGUMENT I. FIVE SAN DIEGO COUNTY DEPUTIES ARE NOT ENTITLED TO QUALIFIED IMMUNITY FROM THE FIRST AMENDMENT RETALIATION CLAIMS The district court dismissed the Count One (SAC) First Amendment retaliation claims against each of the five individuallynamed SDC deputies on the grounds of qualified immunity. ER037ER040. Using the two-prong qualified immunity analysis in Saucier v. Katz, 533 U.S. 194, 201 (2009) the court found that Playford had sufficiently alleged violations of a constitutional right on February 28, 2010, March 9, 2010, and December 1, 2011. ER037.1 The court then cited Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013) for uncertainty in the right previously clearly established in Skoog v. Cnty.                                                              The district court dismissed the Count One (SAC) First Amendment retaliation claims against Allensworth, Breneman, and Proctor related to the May 25, 2012, arrest because “[b]ased on the allegations of the SAC, the May 25, 2012, arrest occurred within the accident scene closed to the general public that Playford had no First Amendment right to be within.” ER032-ER033. The district court also dismissed the Count One (SAC) First Amendment retaliation claims against Allensworth, Breneman, and Proctor related to the May 25, 2012, arrest on the grounds of qualified immunity. ER040. The dismissal of the Count Three (TAC) Fourth Amendment false arrest claim and the grant of qualified immunity for the Count One (SAC) First Amendment retaliation claims to Allensworth, Breneman, and Proctor related to the May 25, 2012, arrest are addressed in Section II of the Argument. 1 14   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 32 of 135 of Clackamas, 469 F.3d 1221 (9th Cir. 2006) “to be free from police action motivated by retaliatory animus but for which there was probable cause.” Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013) (quoting Skoog, 469 F.3d at 1235). The challenged conduct in Acosta occurred ten months prior to the Skoog decision. The challenged conduct in Count One (SAC) occurred in 2010, 2011, and 2012, after Skoog clearly established on November 20, 2006, the right to be free from police action motivated by retaliatory animus but for which there was probable cause. The five SDC deputies are not entitled to qualified immunity from Playford’s Count One (SAC) First Amendment retaliation claims challenging conduct that occurred in 2010, 2011, and 2012 even if probable cause is established for the arrests or lack of probable cause is not pleaded. A. Standard Of Review This Circuit reviews de novo a district court’s grant of absolute or qualified immunity to a public official and dismissal for failure to state a claim pursuant to Rule 12(b)(6). Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012). The district court granted the five individuallynamed deputies qualified immunity. A Rule 12(b)(6) dismissal is not 15   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 33 of 135 appropriate unless the court “can determine, based on the complaint itself, that qualified immunity applies.” Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001). B. Findings Of Probable Cause Do Not Entitle The Deputies To Qualified Immunity In holding that the five individually-named deputies were entitled to qualified immunity the district court relied on Acosta to find that Playford’s right on February 28, 2010, March 9, 2010, December 1, 2011, and May 25, 2012, to be free from a retaliatory arrest otherwise supported by probable cause was not a clearly established First Amendment right. ER040.2 The facts in Acosta arise from Benito Acosta’s removal on January 3, 2006, from a City Council meeting by police officers during his public commentary. Acosta, 718 F.3d at 808809. Officers testified that Acosta resisted their efforts to further remove him from a volatile crowd once outside the City Council                                                              2See Order on County Defendants’ Motion to Dismiss (ER039-ER040): “However, Acosta, has created some uncertainty. In granting qualified immunity the Acosta court relies on Reichle and states that ‘the Supreme Court held that it had not recognized, nor was there a clearly established First Amendment right to be free from a retaliatory arrest that is otherwise supported by probable cause.’” Acosta, 718 F.3d at 825. 16   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 34 of 135 building. Id. at 809. The Acosta district court found probable cause for the January 6, 2006, arrest in considering the qualified immunity defense raised in the officers’ motion for summary judgment. Id. at 825826. In affirming the trial court’s probable cause finding on appeal, Acosta recognized that at the time of the challenged arrest on January 6, 2006, neither the Supreme Court nor this Circuit had clearly established a First Amendment right to be free from a retaliatory arrest that is otherwise supported by probable cause. Id. at 825 (quoting Reichle, 132 S.Ct. at 2097 (“[I]t was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation.”). Ten months following the occurrence of the challenged conduct in Acosta, Skoog clearly established the right “to be free from police action motivated by retaliatory animus but for which there was probable cause.” Ford, 706 F.3d at 1193 (9th Cir. 2013) (quoting Skoog, 469 F.3d at 1235). When Playford was arrested in 2010, 2011, and 2012 the law was clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. The 2013 Acosta decision limited to a consideration of Supreme Court precedent and the 17   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 35 of 135 law in this Circuit on January 6, 2006, when Acosta was arrested, does not create uncertainty for the dates of February 28, 2010, March 9, 2010, December 1, 2011, and May 25, 2012, when Playford was arrested. C. The Second Amended Complaint Sufficiently Alleges Retaliation Four Times3 1. Playford’s “no contest” pleas to disturbing another person for the February 28, 2010, and March 9, 2010, arrests after a deadlocked jury mistrial Deputy Seiver arrested Playford for obstructing or delaying a peace officer for incidents occurring on separate dates of February 28, 2010, and March 9, 2010. ER350, ER435-ER439. The cases were joined for a single trial that resulted in a deadlocked jury. ER439, ER344ER346. Playford pleaded “no contest” to disturbing another person by loud or offensive noise on each date.4 ER439, ER353.5                                                              The May 25, 2012, arrest is addressed in Section II of the Argument. Cal. Penal Code § 415(2) 5 Exhibit D to a Notice of Lodgment filed by the County with its motion to dismiss the TAC records two “no contest” pleas to Penal Code § 415(2) entered in state court for the February 28, 2010, and March 9, 2010, arrests. The district court correctly notes in footnote 9 of its April 28, 2016, Order granting summary judgment (ER014) that Playford alleged in the SAC (ER439) and TAC (ER382) that he pleaded “guilty” to one count of disturbing the peace to resolve the February 28, 2010, and March 9, 2010, arrests and declared the same in a declaration 3 4 18   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 36 of 135 Playford never represented nor was it determined in state court that his First Amendment rights were not violated by the February 28, 2010, and March 9, 2010, arrests. California Penal Code § 1016 allows for six kinds of pleas in criminal matters: 1. Guilty; 2. Not guilty; 3. Nolo contendere, subject to the approval of the court; 4. A former                                                              (ER062) submitted in opposition to summary judgment. The district court does recognize however that the “undisputed record” shows that Playford pleaded “no contest” rather than “guilty.” This is not an instance where a non-moving party attempts to create a material fact by creating a discrepancy in the record to avoid summary judgment. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (“The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.”). Playford’s recall of a “guilty” plea which he truthfully could not alter upon receipt of the state court disposition record arguably was against his interests but the best evidence is the “undisputed record” of “no contest” pleas. Playford was involved in three state court trials, an appeal, a “guilty” verdict, a “not guilty” verdict, and two “no contest” pleas within a 4-year period with representation by different courtappointed counsel in each case. See People v. Williams, 58 Cal. 4th 197, 244 (2013) (“We are mindful of the weight and complexity of the heavy caseloads that many public defenders carry, and we recognize the essential service that public defenders provide to their clients and to the criminal justice system.”). The initial court-appointed attorney in the prosecution of Playford’s May 25, 2012, arrest filed a declaration on September 7, 2012, to withdraw from the case for among other reasons Playford’s focus on First Amendment and freedom of the press issues. ER510-511. Despite the portrayal of Playford in the September 7, 2012, declaration by the initial court-appointed attorney for the prosecution of the May 25, 2012, arrest, Playford’s next court-appointed attorney obtained a “not guilty” verdict on September 11, 2013. ER451. 19   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 37 of 135 judgment of conviction or acquittal of the offense charged; 5. Once in jeopardy; and 6. Not guilty by reason of insanity. The nole contendere or “no contest” plea and “any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” Cal. Penal Code § 1016. As argued in Section I(B) of the Argument, above, Skoog clearly established the right in this Circuit since November 20, 2006 “to be free from police action motivated by retaliatory animus but for which there was probable cause.” Ford, 706 F.3d at 1193 (quoting Skoog, 469 F.3d at 1235). The other prong of the Saucier qualified immunity defense analysis asks whether “taken in the light most favorable to the party asserting the injury do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier, 533 U.S. at 201. The district court found that “Playford had sufficiently alleged a violation of a constitutional right” in Count One (SAC) and the claim survived against the County, Gore, and Caldwell after granting the five individually- 20   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 38 of 135 named deputies, Seiver, Cook, Allensworth, Breneman, and Proctor, qualified immunity. ER051.6 2. Evidence of retaliatory animus in the arrests for February 28, 2010, and March 9, 2010 In a declaration submitted in support of summary judgment Deputy Seiver states that “his first notable contact with James Playford was on February 28, 2010.” ER204. Deputy James Ward who responded with Seiver to the scene on February 28, 2010, “immediately recognized the subject [Playford] from prior law enforcement contacts as, James Playford.” ER187, ER060. Seiver states that his “only other notable contact” with Playford was on March 9, 2010.7 ER205. Seiver does not                                                              The district court granted SDC District Attorney Dumanis immunity from the Count One (SAC) First Amendment retaliation claim. The claims against Dumanis are addressed in Section VII of the Argument. 7 Playford alleged in his SAC, TAC, and declaration in opposition to summary judgment the following regarding the March 9, 2010, arrest: (1) “Deputy Seiver recorded in his report that ‘several months ago Playford’s media credentials were not renewed by the San Diego police department,’ that ‘[o]n several incidents Playford claimed to be a member of the media, but never could produce any credentials,’ and that Playford, ‘who is no longer a member of the media, went far beyond the reasonable rights of the press or public to film in public.” ER381, ER061. (2) “Deputy Seiver stated in his report that Playford is ‘usually confrontational and argumentative with any deputy who contacts him.’” This is the same testimony that Playford’s attorney sought successfully to exclude at the trial on the February 28, 2010, and March 9, 2010, 6 21   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 39 of 135 define “notable” but he had day-to-day contact with Playford during the trial of the February 28, 2010, and March 9, 2010, arrests when he was designated as the prosecution’s investigator and exempt from sequestration. ER333.                                                              arrests where Deputy Seiver was the main witness for each arrest and attended the trial as the prosecution’s investigator. ER334, ER061. See Motion in Limine filed on Playford’s behalf to exclude at trial “reference by deputies as to Mr. Playford reputation for being ‘confrontational and Argumentative.’” ER334. In its Answer to the TAC the County does not specifically deny as it does other allegations that Deputy Seiver made these statements in his report but states that it lacks information and denies (ER358) nor does Seiver deny these statements in his declaration filed in support of summary judgment. ER203-ER206. In another declaration filed in support of summary judgment, SDC Internal Affairs Lt. Jeff Duckworth denies that Playford filed an IA complaint against Seiver. ER202. A report prepared by SDC Deputy Ward on March 1, 2010, describing interviews of two witnesses from the February 28, 2010, incident specifically includes statements from the witnesses that Seiver never touched Playford and that Playford should have been arrested. Playford was not arrested on February 28, 2010, despite the speedy information of the misdemeanor offense of obstructing, resisting, or delaying an officer available to Seiver and Ward at that time. ER379. Playford alleges he filed an IA against Seiver for the deputy’s conduct on February 28, 2010. ER084. Deputy Ward specifically took statements from two witnesses on March 1, 2010, as if responding to a complaint, i.e. one witness states that he never saw Seiver touch Playford which was the exact complaint made by Playford against Seiver in the IA filed by Playford. ER187-ER188. Playford was then arrested for obstructing and delaying an officer. ER380. The SAC alleges that Playford would not have been arrested but for First Amendment retaliation and his IA complaint. ER380. 22   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 40 of 135 In his declaration, Deputy Seiver states that he knows that “law enforcement officers’ activities in public are subject to being filmed at any time.” ER206. However, Playford’s February 28, 2010, and March 9, 2010, contacts with Deputy Seiver did result in his arrest because according to Deputy Seiver Playford’s recording of police activities in public where there was no perimeter established disturbed the subjects being interviewed by the deputies. ER204-ER205, ER060. Legal conduct cannot become illegal because of its effect on a particular subject. The February 28, 2010, and March 9, 2010, incidents are similar to the facts in Veth Mam v. City of Fullerton, 2013 WL 951401 (C.D. Cal. March 12, 2013). Veth Mam (“Mam”) recorded an early morning, physical struggle between a police officer and Sokha Leng (“Leng”) on a public street. As Mam moved closer to record the struggle, another police officer told Mam twice to “back off.” Id. at 2. Officers repeatedly told Mam to “back off” and eventually Mam obeyed. Mam’s cell phone was knocked out of his hand as he was hand-cuffed and pinned facedown on the ground. Mam proceeded to trial on charges of obstructing a police officer, assault, and battery and was acquitted. Id. Mam filed a civil rights action claiming first that there was no probable cause to 23   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 41 of 135 arrest him for interfering under Penal Code § 148(a)(1). The district court granted summary judgment against Mam on his unlawful seizure claims finding the arrest supported by probable cause. Id. at 8-9. In considering Mam’s First Amendment claim that he was “retaliated against for exercising his First Amendment right to film the acts of the police in public – namely the Leng arrest,” the court recognized: “In this Circuit, an individual has a right ‘to be free from police action motivated by retaliatory animus but for which there was probable cause.” Id. at 10 (quoting Ford, 706 F.3d at 1193). 3. The December 1, 2011, arrest A jury did find Playford guilty of resisting an officer at the trial on the December 1, 2011, arrest by Deputy Cook. The proof of retaliatory arrest is alleged specifically by the fact that individuals in Playford’s vicinity using their cell phones without cameras and media credentials were not approached by Deputy Cook because they were not gathering news with a camera. ER440. Playford observed in his vicinity civilians freely walking and using their cell phones to make and receive phone 24   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 42 of 135 calls.8 ER441. While using his cell phone to contact the news desk at a San Diego television channel and positioning his camera to record the scene to the south of his location, Playford was identified, approached, confronted, detained, questioned, and prevented from gathering news by Deputy Cook. ER441. Playford remained north of the yellow policetape cordoned boundaries and north of all public safety vehicles and personnel engaged in traffic control. ER440. Other individuals walking in the vicinity and individuals in motor vehicles operating eastbound and westbound on State Road 78 in closer proximity to the perimeter were captured by Playford on video using cell phones but those individuals were not ordered to stop using their cell phones or accused of having a bomb detonator disguised as a cell phone because they did not have cameras recording at the scene. ER441. At the state court trial Deputy Cook testified on May 16, 2012, on direct-examination by the prosecution that reporters dress in a certain way or have credentials that help distinguish them as press compared                                                              Playford’s observation was corroborated when Deputy Cook testified on May 16, 2012, at Playford’s state trial that Exhibit 7 portrayed Deputy Cook at the scene of the December 1, 2011, incident only a few feet from a man using a cell phone. ER249 8 25   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 43 of 135 to regular civilians. ER240. According to Deputy Cook “[t]hey [reporters] have little identification cards, press credentials that are usually validated by the San Diego Police Department or the San Diego Sheriff’s Department, at least in this area.” ER240. Deputy Cook testified that he never saw a media badge on Playford. ER240. Playford’s counsel argued at closing, without objection from the prosecution, that Deputy Cook testified initially that he had never seen Playford’s media credential and at no time had he ever seen one or been able to verify that Playford was a member of the media. Deputy Cook changed his testimony to state that he had seen “something around his [Playford’s] neck.”9 ER270. Deputy Cook admitted during questioning by Playford’s counsel, Deputy Public Defender Rick Crawford: Question: As part of your training and part of your briefings, were you ever briefed on who might be members of the media and who might not be members of the media? Answer: Yes.10                                                              The SAC alleges (ER441) and a declaration submitted in opposition to the summary judgment motion filed by the County, Gore, and Caldwell states (ER063) that Deputy Cook contacted American News President Edward Peruta on December 1, 2011, at 5:14 pm EST for the stated reason of verifying Playford’s media status. 10 See Argument, Section V, below, for description of deputy training and commentary provided by Caldwell regarding identifying the media. 9 26   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 44 of 135 ER246-ER247. 4. Playford’s recording of police activity was a “but for” cause of his arrests. This Circuit has held that “to demonstrate a First Amendment violation, a plaintiff must provide evidence showing that by his actions [the defendant] deterred or chilled [the plaintiff's] political speech and such deterrence was a substantial or motivating factor in [the defendant's] conduct.” Lacey v. Maricopa Cnty., 693 F.3d 896, 916 (9th Cir. 2012) (internal citations and quotations omitted). In applying this standard to Playford and Mam both prongs of the inquiry are satisfied: Question #1: Would a person of ordinary firmness be chilled from future First Amendment activity based on the facts in Mam and the allegations regarding Playford’s arrests? In Mam the answer is “Yes” because Mam was arrested, searched, and his cell phone seized. Playford was arrested and detained four times and his property seized on March 9, 2010, December 1, 2011, and May 25, 2012. The Amended Complaint sufficiently alleges that a person of ordinary firmness would be chilled from future First 27   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 45 of 135 Amendment activities when subject to the conduct attributed to the arresting SDCSD deputies. Question # 2: Was Mam’s and Playford’s First Amendment activity a “but for” cause of their arrests? In Mam the answer is “Yes” because “the only difference between Mam and those near him was the cell phone being used to record.” Mam, 2013 WL 951401, at *6. Playford recorded police activity in public locations on February 28, 2010, March 9, 2010, and December 1, 2011. Although other individuals in the vicinity had cell phones on December 1, 2011, in the public location where Playford was recording, Deputy Cook seized Playford’s cell phone on the stated position that it was an explosive device although no precautions were taken for the possibility that it could actually explode. ER440-ER443. But for the retaliatory animus toward Playford for his attempts to gather news with an American News media credential and defy orders to stop recording in public places or in places where other media are permitted, he would not have been arrested. 28   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 46 of 135 5. Glik v. Cuniffe and the media presence How the presence of media is interpreted by police officers and whether it “interferes” or not is a function of how averse or welcoming police officers are to the attention paid to their activities. See Glik v. Cunniffe, 655 F.3d 78, 80 (1st Cir. 2011) (“the fact that the ‘officers were unhappy they were being recorded during an arrest … does not make a lawful exercise of a First Amendment right a crime.’”); see also Estes v. State of Texas, 381 U.S. 532, 546 (1965) (“We are all self-conscious and uneasy when being televised. Human nature being what it is, not only will a juror's eyes be fixed on the camera, but also his mind will be preoccupied with the telecasting rather than with the testimony.”). Playford would not have been excluded from recording matters of public interest conducted in public locations where the public was present on February 28, 2010, March 9, 2010, and December 1, 2011, or at the scene of an accident on May 25, 2012, where other media were allowed but for Playford’s outspokenness about his right to gather news with an American News media credential. 29   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 47 of 135 II. THREE SAN DIEGO COUNTY SHERIFF DEPUTIES UNLAWFULLY ARRESTED PLAYFORD AT AN ACCCIDENT SCENE ON MAY 25, 2012 Playford filed the original Complaint in the Southern District of California on September 9, 2012. ER518. The Honorable Irma E. Gonzalez dismissed the Complaint without prejudice and granted leave to amend. ER520. An Amended Complaint was filed on April 15, 2013, in six counts (ER520) and the County Defendants moved to dismiss. ER520. Prior to issuance of a ruling on the motions, Playford received a “not guilty” verdict in the trial on his May 25, 2012, arrest for resisting an officer. ER451. The Honorable Roger T. Benetiz granted Playford’s motion to amend and supplement the pleadings to add the “not guilty” verdict and Count Seven for Fourth Amendment false arrest against Allensworth, Breneman, and Proctor. ER521. Playford filed the SAC on January 14, 2014. ER521. In an Order dated September 18, 2014, the district court granted Allensworth, Breneman, and Proctor qualified immunity for the May 25, 2012, arrest finding that Acosta had created uncertainty in this Circuit whether “existing precedent” clearly establishes the right to be 30   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 48 of 135 free of a retaliatory arrest otherwise supported by probable cause. ER039-ER040. The district court also found that “[b]ased on the allegations in the SAC, the May 25, 2012, arrest occurred within an accident scene closed to the general public that Playford had no First Amendment right to be in.” ER033. The district court concluded that Playford’s First Amendment retaliation claim against Allensworth, Breneman, and Proctor could not succeed for the May 25, 2012, arrest.11 The May 25, 2012, arrest was the only arrest of the four arrests where Playford pleaded lack of probable cause. ER464. The Fourth Amendment false arrest claim in Count Seven (SAC) was dismissed without prejudice and                                                              This resulted in the district court excluding the May 25, 2012, arrest and “not guilty” verdict from its consideration of the summary judgment motion against the remaining County Defendants in the Count One (TAC) First Amendment retaliation claim. See Order Granting Defendants’ Motion for Summary Judgment (ER002): “Plaintiff argues that he was targeted for arrest by Sheriff Gore and Sheriff’s Department Public Information Officer Caldwell because of these activities, although he either pleaded no contest or was found guilty at trial for all the relevant arrests.” The district court did not consider the May 25, 2012, arrest and “not guilty” verdict in the summary judgment motion against the County, Caldwell, and Gore because in its previous Order of September 18, 2014, the court had concluded that the May 25, 2012, arrest and “not guilty” verdict could not “form the basis for his [Playford’s] retaliation claim.” ER032. 11 31   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 49 of 135 with leave to amend. ER051. Playford filed a Third Amended Complaint on October 6, 2014, with a Count Three for Fourth Amendment false arrest (ER522, ER404) that was dismissed by Order dated April 10, 2015, for failure to state a claim. ER017-ER024. A. Standard Of Review “Dismissals under Fed.R.Civ.P. 12(b)(6) for failure to state a claim are reviewed de novo. Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595–96 (9th Cir. 2004). Complaints are only “dismissed for failure to state a claim [if] it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The court accepts the complaint's well pleaded allegations of fact and construes them in the plaintiff's favor. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001).” Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007). B. The Third Amended Complaint Sufficiently Alleges A Lack Of Probable Cause For The May 25, 2012, Arrest The district court failed to reference or acknowledge in either its consideration of Playford’s Count One (SAC) First Amendment retaliation claim or Count Three (TAC) Fourth Amendment false arrest 32   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 50 of 135 claim the material and relevant fact that Ramona Sentinel reporter Karen Brainard was permitted to drive into the multi-vehicle accident scene to take photographs in full view of Playford who was not allowed the same access. ER387. A link to photos of the accident taken by Brainard showing her proximity to the accident was referenced and incorporated into the TAC. ER388.12 1. The SAC and TAC allegations of fact in support of the First Amendment retaliation and Fourth Amendment false arrest claims In Playford’s Count One (SAC) for First Amendment retaliation and Count Seven (SAC) and Count Three (TAC) for Fourth Amendment false arrest against Allensworth, Breneman, and Proctor arising from                                                              The Ramona Sentinel was part of a package sale to Tribune Publishing in May 2015. The link to the photographs taken on May 25, 2012, by Ramona Sentinel reporter Karen Brainard changed from the link in paragraph 140 of the SAC, www.ramonasentinel.com/2012/05/25/4dead-in-3-vehicle-sr67-collisionreports-chp/ , to a new link, http://www.sandiegouniontribune.com/ramona-sentinel/sdrs-fourvictims-identified-in-fatal-highway-67-crash-2012may25-story.html, created with the sale of the Ramona Sentinel to a Tribune publication. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“A court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.”).  . 12 33   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 51 of 135 the May 25, 2012, arrest, Playford alleges that he responded as a duly authorized representative of American News to a motor vehicle accident with multiple fatalities on State Road 67, a public highway in San Diego County, with the intention to gather and report a major breaking news story. ER387, ER444. Playford approached the scene of the accident from the north traveling southbound on State Road 67 as a passenger in a motor vehicle. ER387, ER444. Playford exited the vehicle at 10:33 am on State Road 67 in the area of Archie Moore Road approximately eight-tenths of a mile north of the accident scene and walked southbound toward the scene. ER388, ER445. While walking southbound on State Road 67, Playford possessed and carried his American News issued media credentials and video camera owned by American News. ER387, ER444. Proctor was directing traffic at the intersection of State Road 67 and Archie Moore Road when he recognized Playford. ER388, ER445. Proctor radioed notice to the SDC Communications Center and other law enforcement on scene that Playford had arrived. ER388, ER445. Proctor, despite never having had any interaction with Playford, warned Allensworth and Breneman that Playford was on his way 34   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 52 of 135 because in Proctor's view, based upon what he had been told by others, Playford was known to show up and "creates interactions with the deputies that take them away from their duties." ER388, ER445. Playford videotaped his approach to the scene knowing from experience that the County deputies would identify, approach, confront, detain, question, and prevent him from gathering news at the scene in retaliation for his prior attempts to exercise the First Amendment rights. ER389, ER446. Playford observed Ramona Sentinel reporter Karen Brainard and her vehicle further southbound closer to the accident scene. ER389, ER446. Breneman approached Playford as Playford walked south toward Ramona Sentinel reporter Karen Brainard and then directed Playford to the northbound side of State Road 67. ER389, ER446. Playford immediately complied with Breneman’s direction and positioned himself in an area further from the accident scene than Ramona Sentinel reporter Karen Brainard. ER389, ER446. Breneman then approached and informed Playford: "My sergeant advised me you do not have press credentials," and told Playford "you cannot be over here." ER389, ER446. While Breneman prevented Playford from 35   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 53 of 135 proceeding further southbound, within sight of Breneman and Playford in a southbound direction were other media representatives, including Ramona Sentinel reporter Karen Brainard and one local NBC news crew. ER389, ER446. The California Highway Patrol (CHP) had jurisdiction over the accident scene on State Road 67 and conducted the accident investigation. ER389, ER446. CHP Officer Joseph Nielsen (“Officer Nielsen”) approached Playford and Breneman after observing their interaction. ER390, ER447. Officer Nielsen questioned Playford’s media status and took possession of Playford’s American News credentials. ER390, ER447. Officer Nielsen consulted with Breneman and Allensworth while other members of the media including Ramona Sentinel reporter Karen Brainard and one local NBC news crew were nearer to the accident scene than Officer Nielsen, Breneman, and Allensworth. ER390, ER447. Allensworth and Breneman misled Officer Nielsen by representing that Playford's American News media credentials were not valid. ER390, ER447. 36   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 54 of 135 Playford remained in the public street which was closed to traffic but open to other members of the media and their vehicles. ER390, ER447. At no time did Playford enter any area of State Road 67 or move beyond any access point granted to other members of the media. ER390, ER447. While waiting for Officer Nielsen to return his press credentials, Proctor approached Playford and despite no previous interaction with Playford addressed Playford by name. ER390, ER447. Both Proctor and Breneman repeatedly informed Playford that his American News credentials were not valid. ER391, ER448. For his refusal to move in response to Breneman’s, Allensworth’s and Proctor’s refusal to recognize his American News media credentials as equally valid to the credentials of other media at the scene Playford was placed under arrest by Proctor and his digital video camera seized with its contents. ER391, ER448. Proctor simultaneously seized a video recording of the May 25, 2012, incident on the camera's memory card. ER391, ER448. The Panasonic camera and memory card seized on May 25, 2012, are the property of American News and were not returned until June 6, 2012, following a written June 4, 2012, demand by American News to Sheriff Gore. ER391, ER448. Playford's media 37   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 55 of 135 credentials issued by American News, seized by Officer Nielsen, and taken by Allensworth on May 25, 2012, have never been returned. ER392, ER449. 2. Leiserson v. City of San Diego requires findings of fact to determine whether the designation of the May 25, 2012, accident scene as a crime scene was a post hoc justification for retaliatory exclusion The media was not excluded from the accident scene on May 25, 2012. Playford was excluded for attempting to film a news-worthy event without government-issued media credentials. In Leiserson v. City of San Diego, 184 Cal. App. 3d 41 (1986), Steven Leiserson, a television news cameraman employed by local station KFMB-TV, was assigned to a crash scene of a Pacific Southwest Airlines jetliner that had collided in mid-air with a small plane killing everyone on board and people on the ground. Id. at 44. Officers did not allow Leiserson into the crash scene but directed him to a cordoned area with other media. The cordoned area for the media was closer to the crash scene than the general public was allowed. Id. at 50. Leiserson did not contest that the police may reasonably exclude members of the press from an area in which the commission of a crime is being investigated. He did argue, however, that the police officer who denied him access to the crash site 38   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 56 of 135 and his supervisor could not reasonably have believed that the site was a crime scene. Id. at 52. The Leiserson trial judge accepted the testimony of the supervising officer that he had information from unidentified CHP officers that the crash may have been related to recent assassination threats against the lieutenant governor. Id. at 46. During the proceedings in the trial court but after an “Intended Decision” had been provided to the parties, the judge who heard the evidence in the case died. The next assigned judge adopted the decision and rendered judgment. Id. at 48. The appellate court framed the issue as “the lawfulness of Officer Edwards’ order to Leiserson to keep out of the crash area,” Id. at 49, and was “confront[ed]” with “a finding of fact by the trial judge indicating he believed” the supervising police officer’s testimony about unidentified CHP officers’ report of a crime. Id. at 52.13 The appellate court deferred to the trial judge’s finding and upheld the decision                                                              The Appellate Court observed: “Frankly we have pondered the question whether the ‘Mervyn Dymally’ incident’ was in whole or part a post hoc justification for an exclusion order which was in reality based on reasonable, but nonetheless legally erroneous, grounds for concern of the safety of the press.” Leiserson, 184 Cal. App3d at 52-53. 13 39   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 57 of 135 finding the police officers were justified in excluding Leiserson from the crash site. Id. at 53.   The district court addressed Leiserson in its April 10, 2015, Order dismissing Playford’s Count 3 (TAC) Fourth Amendment false arrest claim. (ER022) According to the district court “the [Leiserson] court upheld restrictions allowing some members of the media access to areas closed by police and excluding others under the police powers.” ER022ER023. However, the “Intended Decision” of the Leiserson trial court judge, adopted by the next assigned judge, and affirmed by the appellate court specifically rejected “restrictions allowing some members of the media access to areas closed by police.” ER022. Specifically, the Leiserson trial judge wrote: Thus, there was no attempt by governmental authority to determine what news might be gathered in a newsworthy context but rather to provide to all of the then present news media an equal opportunity to select and choose what material they then deemed significant for their own purposes from a location that did not unreasonably restrict the accomplishment of that activity under the circumstances present. Id. at 46 n.6. Playford has alleged that he was not afforded the same access as Ramona Sentinel reporter Karen Brainard and the local NBC 40   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 58 of 135 news crew because he did not have government-issued media credentials. In Leiserson, the trial court’s conclusion that the supervising police officer believed the site was a potential crime scene justified the exclusion of the media and general public. Id. at 53. The decision specifically referenced the equal treatment of the media as a component in the trial court’s decision holding the officers justified in excluding Leiserson from the crash site. Id. The appellate court only deferred to the trial court because there had been testimony, evidence, and determinations of credibility by the fact-finder on the “crucial issue” of whether the police officer’s order excluding Leiserson from the crash site was based on a belief by the officer that the site was a crime scene. Id. at 49. The district court adopted the County’s argument that Playford was denied access at the May 25, 2012, accident scene because it was a “[p]ossible crime scene.” ER022. This is a material issue of fact that is disputed because there is no evidence that Allensworth, Breneman, Proctor, or Officer Nielsen believed the accident on State Road 67 was a crime scene. Playford’s allegation that Ramona Sentinel reporter Karen Brainard and the local NBC news crew were allowed into the scene 41   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 59 of 135 supports the opposite inference that it could not have been a crime scene if at least two reporters were allowed entry. In dismissing the May 25, 2012, arrest from Playford’s Count One (SAC) First Amendment retaliation claim the district court stated: “As this Court previously ruled, individuals, including members of the media, can be excluded from accident or crime scenes without violating the First Amendment.” ER032-ER033. In dismissing Playford’s Count Three (TAC) Fourth Amendment false arrest claim arising from the May 25, 2012, arrest and September 11, 2013, “not guilty” verdict, the district court stated: Here, Playford affirmatively objected to being excluded from the accident scene and defied Defendants’ orders to leave. (ER021) … Playford was in a multi-fatality accident scene. Defendants had been previously advised Playford was not a member of the media and he lacked governmentissued media credentials. When Playford was repeatedly advised that he was not permitted there, he objected and refused to leave. Under these circumstances, it was not clearly established that the order to leave was unlawful. (ER023) The elements of Cal. Penal Code § 148(a)(1), resisting arrest, are: “‘(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her 42   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 60 of 135 duties, and (3) the defendant knew or reasonable should have known that the other person was a peace officer engaged in the performance of his or her duties.” Yount v. City of Sacramento, 43 Cal. 4th 885, 894-95 (2008) (quoting In re Muhammed C., 95 Cal. App. 4th 1325, 1329 (6th Dist. 2002)). It was clearly established prior to May 25, 2012, in this Circuit that the lawfulness of an officer's order is an essential element of the offense of resisting, delaying, or obstructing a peace officer. Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005). Allensworth, Breneman, and Proctor engaged in unlawful conduct when they arrested Playford on May 25, 2012, for refusing to obey an unlawful order that he leave an area and not enter an area where he had the First Amendment right to remain to the same extent as Ramona Sentinel reporter Karen Brainard and the local NBC news crew. ER390, ER447. 3. The First Amendment prohibits government content-based preference to media with government-issued media credentials In three of the five cases cited by the district court to support its finding that Playford had no right greater than the public to access the May 25, 2012, accident scene, the facts do not raise the issue 43   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 61 of 135 encountered by Playford on May 25, 2012. See Houchins v. KQED, 438 U.S. 1 (1978); Branzburg v. Hayes, 408 U.S. 665 (1972); Chavez v. City of Oakland, 2009 WL 1537875. ER033. The remaining two cases, L.A. Free Press, Inc. v. City of L.A., 9 Cal. App. 3d 448 (2d Dist. 1970) and Watson v. Cronin, 384 F. Supp. 652 (D. Colo. 1974), reject the exclusion and treatment of media based on First Amendment expression. ER033.  Houchins, 438 U.S. at 10-11 is cited for its finding that “[t]he press has no First Amendment right to access accident or crime scenes if the general public is excluded.” [ER033] The question presented in Houchins was “whether the news media have a constitutional right of access to a county jail, over and above that of other persons, to interview inmates and make sound recordings, films, and photographs for publication and broadcasting by newspapers, radio, and television.” Id. at 3. Houchins did not raise the question of what conditions, if any, justify the government’s denial of access to county jails based on the possession of government-issued versus privately-issued media credentials.  Branzburg, 408 U.S. at 684-85 is cited for the following statement: “Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.” [ER033] The question presented in Branzburg was “whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment.” Branzburg did not raise the question of whether the government may require or not require newsmen to appear and testify based on whether they have government-issued media credentials.  Chavez, 2009 WL 1537875, at *3 is cited for the following statement: “The press has no First Amendment right to access accident or crime scenes if the general public is excluded.” ER033. The question presented in Chavez was whether the 44   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 62 of 135 reporter, Raymundo Chavez, had “a federal right as a member of the press to park his car on the freeway to gather news at this accident scene.” Chavez, 414 Fed.App'x 939, 940 (9th Cir. 2011). In finding that he did not, this Circuit did not address the question of whether the government could allow reporters with government-issued media credentials to park their cars on freeways to gather news while excluding reporters without government-issued media credentials from the same access.  L.A. Free Press, Inc., 9 Cal. App. 3d at 455 is cited for the finding that “petitioner’s status as the publisher of a weekly paper did not give the petitioner a special right of access to crime or disaster scenes under the First Amendment.” ER033. After an evidentiary hearing and findings of fact the trial court found that “[r]egular coverage of police and fire news provides a reasonable basis for classification of persons who seek the privilege of crossing police lines.” The trial court did not accept the publisher’s claim that the denial of press passes had been based on the editorial content of the paper. Id. at 455-456.  Watson, 384 F. Supp. at 657 is cited for the following statement: “A reporter does not have an absolute unqualified right of access to news.” The question presented in Watson was whether the First Amendment, due process, and equal protection rights of a felon whose press card was denied because of his criminal record and a pending felony charge had been violated. Clarke R. Watson received a notice from the Denver Manager of Safety stating: “Your application for a press card has been denied by this office because of your arrest record. It is the policy of this office to deny a press card to anyone with a felony conviction.” Id. at 655. The Tenth Circuit trial court specifically stated that Watson’s case was “significantly different” from Borreca v. Fasi, 369 F.Supp. 906 (D. Haw. 1974). In Borreca: [T]he Honolulu Mayor's personal action in barring a certain reporter from attending any news conferences entitled the reporter to a preliminary injunction. The Mayor's action was based on his dislike for the manner in which that reporter and his newspaper reported the Mayor's 45   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 63 of 135 activities. The Court felt that such intimidation or manipulation of press coverage violated the First Amendment. Id. at 657-658. Of the five cases cited by the district court for the point that the media does not have any more access to crime and disaster scenes than the general public, Watson and Borreca are most relevant to Playford’s First Amendment retaliation claims. In Watson, the trial court recognized that the use of government authority to deny access to media that it dislikes for the manner of coverage is a violation of the First Amendment. In L.A. Free Press, the state appellate court recognized that if a government authority decides to condone access for certain media while excluding other media based on the media’s editorial policy or as alleged in the SAC and TAC by Playford, his outspokenness about access to coverage of public law enforcement activities and scenes where other media is permitted, then the First Amendment is violated because the exclusion is content-based. 46   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 64 of 135 C. Penal Code § 409.5 Corroborates Playford’s Count One (SAC) First Amendment Retaliation Claim and Count Three (TAC) Fourth Amendment False Arrest Claim Penal Code § 409.5(d) exempts a duly authorized representative of any news service, newspaper, or radio or television station or network from obeying a government-issued order prohibiting entry to areas closed due to a menace to the public health or safety created by a calamity such as flood, storm, fire, earthquake, explosion, accident, or other disaster” as referenced in subsection (a) of that section. … .” Section 409.5 (d) presumes that any news service, newspaper, or radio or television station or network may duly authorize a representative to gather news. These duly authorized representatives of news or network services are recognized by state law as exempt from prohibitions for entry to certain areas imposed on the general public due to their status as duly authorized representatives. Section 409.5(d) does not reference a category of news or network service with government-issued credentials. Section 409.5 clearly establishes and has clearly established since Leiserson that all media, not some media, have equal access under § 409.5(d). See Eberhard v. California Highway Patrol, No. 3:14-CV-01910-JD, 2015 WL 6871750, 47   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 65 of 135 at *5 (N.D. Cal. Nov. 9, 2015) (“Section 409.5(d) provides that accredited media may obtain access to areas closed under the statute. Id. at § 409.5(d).”). The district court dismissed all claims related to the May 25, 2012, incident so there are no factual findings based on evidence. The record does not support a finding that the scene was a potential crime scene. A Ramona Sentinel newspaper reporter and local NBC news crew were allowed into the scene. The general public was not allowed into the scene. These factors fit the scenario presented in § 409.5(d): General public not allowed, media allowed. There is no distinction in § 409.5 for media with government-issued credentials and media without government-issues credentials. If state law does not distinguish between media duly authorized by government authority and media duly authorized by non-government authority then the distinction at any other public scene of law enforcement activity has been clearly established since at least Leiserson as unlawful. The First Amendment does however prohibit the government from restricting the media based on possession of non-government-issued rather than a government-issued media credentials as corroborated in 48   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 66 of 135 the language of § 409.5(d) referencing “duly authorized representatives” and not “government- authorized representatives” as exempt from restrictions on scenes described in subsections (a) and (b). See Leiserson, at 46 n. 6 (“Thus, there was no attempt by governmental authority to determine what news might be gathered in a newsworthy context but rather to provide to all of the then present news media an equal opportunity to select and choose what material they then deemed significant for their own purposes from a location that did not unreasonably restrict the accomplishment of that activity under the circumstances present.”). III. SKOOG V. CNTY. OF CLACKAMAS CLEARLY ESTABLISHED THE FOURTH AMENDMENT RIGHT TO BE FREE OF A SEARCH AND SEIZURE OF CAMERAS AND THEIR CONTENTS MOTIVATED BY FIRST AMENDMENT RETALIATION A. Standard Of Review This Court reviews de novo a district court’s grant of absolute or qualified immunity to a public official and dismissal for failure to state a claim pursuant to Rule 12(b)(6). Lacey, v. Maricopa Cnty., 693 F.3d 896, 916 (9th Cir. 2012) The district court granted the five individuallynamed deputies qualified immunity. A Rule 12(b)(6) dismissal is not 49   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 67 of 135 appropriate unless the court “can determine, based on the complaint itself, that qualified immunity applies.” Groten, 251 F.3d at 851 (9th Cir. 2001). B. A Seizure Incident To An Arrest Motivated By First Amendment Retaliation Is A Fourth Amendment Violation In Skoog this Circuit applied the qualified immunity analysis to claims that an officer, Herbert Royster (“Royster”), had violated Daniel Skoog’s Fourth Amendment and First Amendment rights related to an incident on February 19, 2001, where Skoog filmed Royster discussing the illegal sale of tobacco with a store clerk after a “sting operation.” Skoog refused to provide Royster the video without first making a copy at his office located above the store. Prior to following Skoog to his office Royster called for assistance. The next officer who arrived at the scene, Deputy Kraus (“Kraus”), told Royster that Skoog had filed a lawsuit claiming excessive force, lack of probable cause and other claims against another officer who had arrested Skoog in 2000.14 Skoog, 469 F.3d at 1225.                                                              See San Diego Regional Deputy’s Report Narrative related to the February 28, 2010, incident that resulted in Playford’s arrest where Deputy James Ward states: “A subject in a white Ford F-150 parked his 14 50   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 68 of 135 Royster watched the video provided him by Skoog and determined it was only a partial copy of the original. Royster obtained a search and seizure warrant for evidence related to Skoog’s violation of a state criminal eavesdropping law based on Skoog’s filming of the conversation between Royster and the store clerk. The district court granted Royster summary judgment against Skoog in favor of Royster for the seizure of a still camera by warrant and this Circuit affirmed. Id. at 1231. The district court did not grant Royster qualified immunity on Skoog’s First Amendment claim alleging that the search and seizure were motivated by retaliation against him for filing a lawsuit related to the 2000 arrest. In determining whether Skoog needed to plead a lack of probable cause for his First Amendment retaliation claim this Circuit concluded: We have concluded that Skoog need not have pled the absence of probable cause in order to state a claim for retaliation. Our earlier conclusion that probable cause existed for the still camera’s seizure therefore does not preclude his statement of a claim.                                                              vehicle on the east shoulder of Magnolia, approximately 75 yards south of our location. As the subject exited his vehicle, I immediately recognized the subject from prior law enforcement contacts as J.C. Playford.” ER187. 51   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 69 of 135 Id. at 1235. However, because “the right of an individual to be free of police action motivated by retaliatory animus but for which there was probable cause” was not clearly established on February 19, 2001, in this Circuit and the Circuit decided only on November 20, 2006, that it was a right, the district court’s denial of summary judgment to Royster on his qualified immunity defense to the First Amendment retaliation claim was reversed. In concluding that the right to be free from police action motivated by retaliatory animus but for which there was probable cause had not been clearly established on February 19, 2001, this Circuit concluded that Skoog’s Fourth Amendment claim could not survive because probable cause had been found for the seizure of the still camera. In Playford’s arrests on March 9, 2010, and December 1, 2011, the district court determined that Playford had established First Amendment retaliation violations. ER031. For the reasons stated in Section I, above, the law was clearly established in this Circuit in 2010 and 2011 that Playford did not need to plead or prove lack of probable cause. Skoog established as well that for Playford to allege a Fourth Amendment violation for the seizure of his cameras and contents on 52   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 70 of 135 March 9, 2010, December 1, 2011, and May 25, 2012, he did not need to plead or prove lack of probable cause when the search and seizure were based on a retaliatory motivation. See Skoog, 469 F.3d at 1235 (“Accordingly, even assuming Royster’s primary motivation for seizing Skoog’s still camera was to retaliate for Skoog’s exercise of his First Amendment rights, he violated no clearly established law because probable cause existed for the search.”). The clearly established law in Skoog of “the right of an individual to be free of police action motivated by retaliatory animus but for which there was probable cause” prohibited the police conduct in the February 28, 2010, March 9, 2010, December 1, 2011, and May 25, 2012, arrests and the police conduct that followed from three of those arrests March 9, 2010, December 1, 2011, and May 25, 2012, in the seizures of Playford’s cameras and their contents. 53   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 71 of 135 IV. The Seizures and Searches of Cameras and Contents Owned by American News from Playford on March 9, 2010, December 11, 2011, and May 25, 2012, by Five San Diego County deputies were not exempt from the protections of the Federal Privacy Protection Act. A. Standard Of Review This Circuit reviews de novo a district court’s dismissal for failure to state a claim pursuant to Ru le 12(b)(6). Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012). See also Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001); Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001); Pinnavaia v. F.B.I., 218 F. App'x 646, 647 (9th Cir. 2007). B. The Second Amended Complaint Sufficiently Alleges Federal Privacy Protection Act Claims The federal Privacy Protection Act (PPA) prohibits “a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize documentary materials, other than work product materials, possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting 54   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 72 of 135 interstate or foreign commerce.” 42 U.S.C.A. § 2000aa. The SAC alleges the following:  Playford is … an agent of American News in the business of news and information gathering and recording since February 23, 2010, and a freelance photojournalist and videographer. ER424.  Plaintiff American News and Information Services, Inc. (“American News”) is a news and information company incorporated in the State of Connecticut and owned by Edward A. Peruta that operates throughout the United States, and which gathers raw, breaking news video, photographs, and news tips to various mainstream media outlets. ER423.  Playford commenced his work as a freelance photojournalist and videographer in 2007 recording wildfires near Ramona, California. ER426.  Playford is often the first journalist to arrive at and record law enforcement, fire protection, and medical emergency responses to public safety incidents. ER426.  Playford has provided and sold his work to CNN™, TMZ™, TruTV™, MSNBC™, and a variety of local news outlets and his work product is available on the Internet. ER426.  Playford’s and American News’ YouTube™ Channel NewsNowSanDiego has more than 5,900 subscribers and in excess of 2 million hits. ER369.  Deputy Seiver seized a Sony HDV Handycam HDR-FX7 camera and its stored raw video footage from Playford at the March 9, 2010, arrest scene. ER439.  Deputy Cook seized the Panasonic High Definition video camera and the raw footage in Playford’s possession at the time of his arrest on December 1, 2011. ER441.  The SDC deputies placed the video camera and camera memory card in two separate sealed evidence bags on December 2, 2011. ER442.  At all times relevant to this complaint the video camera and its contents were the property of American News. ER442. 55   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 73 of 135  Between December 1, 2011, and December 2, 2011, when the evidence bag holding the video camera was sealed, the SDCSD conducted a warrantless search and seizure of the contents of the video camera and reproduced the contents of the camera’s video card onto a separate disk. ER442.  The SDC District Attorney’s office obtained the reproduced copy of the video originally contained in the video camera and SDHC video card owned by American News. ER442.  For his refusal to move on May 25, 2012, Playford was placed under arrest and the video camera in his possession seized and shut-off by Deputy Proctor. ER448.  Deputy Proctor simultaneously seized a video recording of the May 25, 2012, incident on the camera’s memory card. ER448.  The Panasonic camera and memory card seized on May 25, 2012, are the property of American News and were not returned until June 6, 2012, following a written June 4, 2012, demand by American News to Sheriff Gore. ER448. C. Application of the PPA Exception To Probable Cause For Resisting, Obstructing, Or Delaying Police Officers In The Performance Of Their Duties Eviscerates The Media’s Right To Record Public Police Activity Playford’s documentary materials were seized on March 9, 2010, December 1, 2011, and May 25, 2012. In dismissing Playford’s PPA claims the district court applied an exception in the statute which allows the government to seize materials when there “is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” 42 U.S.C. § 2000aa(a)(1). ER045-ER046. The district court found that “[i]n 56   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 74 of 135 each incidence of seizure of Playford’s cameras, Playford alleges he was filming the activities occurring around him and leading to his arrest.” ER046. Whether Playford’s recordings relate to his arrests or not is a question of fact. In Rouzan v. Dorta, No. EDCV 12-1361-BRO JPR, 2014 WL 1716094 (C.D. Cal. Mar. 12, 2014). Rodney Rouzan used his cellphone on June 18, 2012, to video-record a conversation in a San Bernardino courthouse. A marshal seized Rouzan’s cellphone for violating court policy. Rouzan claimed a violation of his Fourth Amendment rights including his right to be free from the warrantless, unreasonable seizure of his cellphone and its contents. The district court held that a reasonable officer might have believed the warrantless search of the cellphone under the circumstances was permitted. Id. at *11. In Rouzan the cellphone was related to the offense, specifically because using the cellphone to record courthouse activities constituted the offense. In interpreting the exception to the PPA in the context of cases involving recording of police activity to allow police officers to seize recordings from individuals who are arrested for delaying or obstructing 57   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 75 of 135 a police officer, there is the risk that materials will be seized with the justification of confirming the allegations of delay or obstruction when in fact the result will be to remove the recording from timely distribution through the news stream. Officers who are unhappy with being recorded in a public place and focus on that displeasure to their distraction from their duties which delays or obstructs their performance blame the individual recording for the effect and seize the documentary materials completing the cycle of what starts with displeasure at being recorded and ends with seizure of the recording. D. A Caveat To The Exception In The PPA That Prohibits Seizure Even When Probable Cause Exists To Believe The Documentary Materials Relate To A Criminal Offense Committed By the Person Possessing The Materials Applies To The March 9, 2010, December 1, 2011, and May 25, 2012, Seizures Of Playford’s Documentary Materials Even if the exception to the prohibition on seizing documentary materials applied in circumstances where there is probable cause to believe that the person possessing such materials had committed or was committing offenses related to resisting, obstructing, or delaying police officers in the performance of their duties, a caveat to this exception in the PPA provides that “a government officer or employee may not 58   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 76 of 135 search or seize documentary materials if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein.” 42 U.S.C. § 2000aa(b)(1). In its opinion dismissing the PPA claims the district court found from the pleadings that “[i]n each incidence of seizure of Playford’s cameras, Playford alleges he was filming the activities occurring around him and leading to his arrest.” ER046. Regarding the March 9, 2010, arrest and seizure, Playford was filming police activity in a public Albertson’s parking lot where no perimeter had been established; regarding the December 1, 2011, arrest and seizure, Playford was filming an investigation of a bomb scare where Playford never crossed what was described as a 300 foot perimeter, ER230, ER440-ER443, ER437-ER439; and regarding the May 25, 2012, arrest and seizure, Playford was filming an accident scene where other media were allowed access to the accident scene. ER444-ER449. Playford has alleged that his filming, i.e. receipt and possession of film of the activities, led to his arrest. But for his conduct in attempting to gather news and his receipt and possession of the recordings he was able to gather prior to his arrests Playford would not have been 59   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 77 of 135 arrested. In seizing Playford’s documentary materials Seiver, Cook, Allensworth, Proctor, and Breneman violated the PPA as the documentary materials were subject to the PPA exception caveat which applies when the crime for which there is probable cause relates to the receipt and possession of the documentary materials. V.   LAW ENFORCEMENT’S USE OF GOVERNMENT-ISSUED MEDIA CREDENTIALS TO EXCLUDE PLAYFORD FROM ACCESS TO THE MAY 25, 2012, ACCIDENT SCENE AND MEDIA CONFERENCES VIOLATES THE FIRST AMENDMENT A. Standard Of Review   1. Dismissal of Count Three (SAC) First, Fourth, and Fourteenth Amendment failure to train claim (ER042-ER044, ER459-ER460) against Caldwell Dismissals under Rule 12(b)(6) for failure to state a claim are reviewed de novo. Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595– 96 (9th Cir.2004). Complaints are only “dismissed for failure to state a claim [if] it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The court accepts the complaint's well pleaded allegations of fact and construes 60   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 78 of 135 them in the plaintiff's favor. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001). 2. Summary Judgment In Favor of San Diego County on Count Two (TAC) First, Fourth, and Fourteenth Amendment failure to train claim (ER015-ER016, ER400-ER402) against San Diego County “The appellate court’s review is governed by the same standard used by the trial court under Fed. R. Civ. P. 56(c).” See Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d 1110, 1131 (9th Cir. 2003). “On review, the appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. The court must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial.” See Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999). B. San Diego County Was Deliberately Indifferent To The First Amendment Implications Of Its Deputies’ Reliance On San Diego Police Department Government-Issued Media Credentials For Determinations Of Media Access To Law Enforcement Activity And Information 61   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 79 of 135 Playford alleged in Count Two (SAC) a failure to train against the County, Gore, and Caldwell in violation of the First, Fourth, and Fourteenth Amendments. ER459. The district court dismissed the claim against Caldwell finding that Sheriff Gore rather than Caldwell is the policy-maker for the department. ER044. Playford repleaded the claim against the County and Gore in Count Two (TAC). Playford appeals the dismissal of the claim against Caldwell and the grant of summary judgment in favor of the County. Playford alleged in Count Three (SAC):  Public Affairs Director Caldwell is responsible also for establishing media guidelines for the department and its deputies to follow. ER460.  Defendant Jan Caldwell (“Caldwell”), in her capacity as the San Diego County Sheriff’s Department Public Affairs Director, supervises the Public Affairs/Media Relations Office for the stated purpose of interacting ‘daily with television, radio and print media to ensure the most up to date and reliable information is released to the public.’ The Public Affairs/Media Relations Office expressly grants ‘credentialed media’ superior access to ‘the most up to date’ and reliable information. See http://www.sdsheriff.net/newsroom/index/html (as of June 27, 2012) and provides for ‘after hours’ access to ‘credentialed media on deadline’ (as of April 15, 2013). ER 424. The allegations were realleged in the Count Two (TAC) failure to train claims that survived against the County and Gore. ER401, ER368. In its answer to the TAC the County and Gore admit the second62   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 80 of 135 bulleted paragraph, above, including that Caldwell “supervises the Public Affairs/Media Relations Office for the stated purpose of interacting ‘daily with television, radio and print media to ensure the most up to date and reliable information is released to the public.’” ER 358.15 In her declaration in support of summary judgment Caldwell states: Since 2009, I have been conducting in-house media training for deputies and civilian staff of the Sheriff’s Department. The training includes information about the current rights of media and the public and the current trends in social media and the impacts on law enforcement. The training provided to deputies, professional staff, new supervisors, and Search and Rescue volunteers also includes blocks of instruction on the various types of media, policy and procedure on working with the media, interview/training scenarios, media release preparation, media conference considerations, and Joint Information Centers. ER200. “Policymakers' ‘continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences                                                              15  County and Gore admit paragraph 16 (ER368) of the TAC. ER358.  63   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 81 of 135 of their action—the ‘deliberate indifference’—necessary to trigger municipal liability.’” Connick v. Thompson, 563 U.S. 51, 62 (2011). The SDC District Attorney’s Office relies on Caldwell for her testimony about media policies and procedures. ER108-ER109. Caldwell’s position is that the only real media is the media with government credentials. According to Caldwell in quotes and summarized points from her deposition:  “I don’t recall a specific incident. The last one would have been I believe last June when we had a news conference in the building, and we were trying to ascertain if Mr. Playford had media – valid media credentials issued by the San Diego Police Department”. ER092  It was error to allow Playford into that media conference because he did not have media credentials issued by the San Diego Police Department. ER099.  “What was policy is that a person with the news, with the media, has a valid San Diego Department issued credential. They are allowed into our building to videotape or conduct interviews. They don’t need a credential if we have the media conference outside. And then the general public may attend as well.” ER095-ER096.  For a media credential to be recognized as valid it has to be issued by a government agency. ER102.  If a media credential is not issued by the government, then it is not valid. ER103. In accordance with Caldwell’s policy that media credentials are not valid unless government-issued and that the government has authority to determine who qualifies as the media for superior access to 64   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 82 of 135 information, Caldwell made the following statements on February 19, 2013, at a San Diego Society of Professional Journalists’ Annual Report Card on the Media Panel Discussion as confirmed at her March 16, 2016, deposition. ER142-ER143, ER145-ER146.  “Um first of all and my first point I want to make is be nice to me, I mean seriously be nice to me because I’m a mirror and I will reflect how you treat me. If you are rude, if you are obnoxious, if you are demanding, if you call me a liar, I will probably not talk to you anymore.”  “And there’s only one Sheriff’s Department in town and you can go talk to all the deputies all you want, but there’s one Public Affairs Director, just be nice to me. If you’re nice to me and when I say I’m sorry I don’t know the answer to that but I’m sorry I can’t talk about that, I’m not lying, I’m not lying to you. Thirty Two years with the FBI, six years with the Sheriff’s Department I believe I have Integrity, because if you don’t have integrity you don’t have a good soul, then you have nothing. That’s my soapbox on that.”  “Now we’re getting into a whole nother area with regard to the, and this may be a panel for next year, journalism credentials and who should have them and should we have them and I would al… I’m gonna throw that back on you all in a minute to find out what you think.”  “[B]ecause you can sit with your Apple laptop in your fuzzy slippers, you can be eight hundred pounds, a disabled man who can’t get out of bed and be a journalist, because you can blog something.”  “Does that give you the right because you blog in your fuzzy slippers out of your bedroom, and you don’t go out, and you haven’t gotten that degree? Should you be called a journalist or should you be like Pauline ??? who graduated from Journalism school and has been doing a long time or J.W or Dennis I mean are you on the same par?”  “In my estimation, and I’d like to hear from Darren and Michael 65   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 83 of 135 on that no, because Pauline and J.W. and Matt and the others that have been doing this a long time know the questions to ask, as will you. But if you’re sitting at home on your laptop and you’re blogging and you just want to get under my skin for your city beat, I love that then yea, so I drop that out on you all what do you think about that?” ER396. VI. MATERIAL FACTS IN DISPUTE MAY LEAD A REASONABLE TRIER OF FACT TO DETERMINE THAT THE COUNTY OF SAN DIEGO THROUGH THE SHERIFF’S DEPARTMENT PUBLIC INFORMATION OFFICER JAN CALDWELL RETALIATED AGAINST PLAYFORD FOR HIS EXERCISE OF FIRST AMENDMENT RIGHTS A. Standard Of Law “The appellate court’s review is governed by the same standard used by the trial court under Fed. R. Civ. P. 56(c).” See Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d 1110, 1131 (9th Cir. 2003). “On review, the appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. The court must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial.” See Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999). 66   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 84 of 135 B. The Case Against Caldwell For First Amendment Retaliation Playford alleged Count One (TAC) First Amendment Retaliation against Caldwell in her official and individual capacities. ER398ER400. In support Playford alleged:  At an unknown date after January 1, 2009, and prior to May 25, 2012, the SDCSD disseminated a captioned photograph of Playford stating in substance: “Per Jan Caldwell J.C. Playford is not a member of the media.” ER373.  SDC Public Affairs Director Caldwell distributed or directed the distribution of a captioned photograph of Playford substantively captioned: “Per Jan Caldwell J.C. Playford is not a member of the media.” ER373.  The captioned photograph of Playford distributed to SDCSD deputies and other law enforcement agencies in SD County furthered and condoned the pattern and practice of repeated confrontations, detentions, interrogations, and arrests of Playford arising from an intent to retaliate against Playford for exercising his first amendment rights and imposed consequences for such exercise that would chill a person of ordinary firmness from future First Amendment activity. ER374, ER431-ER432. The district court granted summary judgment in favor of the County and Caldwell finding that the evidence reflected only that Caldwell provided a photograph to the Sheriff Department lobby deputies in 2012, subsequent to all four Playford arrests. ER011. Even if the photograph had been provided in 2010 it would only indicate, according to the district court, that “Plaintiff was no longer considered 67   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 85 of 135 ‘media,’ consistent with his media credentials not being renewed.” ER011. According to the district court a “single photograph, observed only at this location [Sheriff Department lobby], is not sufficient to infer that Caldwell directed or encouraged Plaintiff’s arrest in retaliation for videotaping deputies.” ER011. C. The Discrepancies In Caldwell’s Testimony and Two Declarations Corroborate Playford’s First Amendment Retaliation Claims And Create Material Issues of Fact 1. Caldwell’s May 18, 2016, Declaration In a declaration dated March 18, 2016, filed in support of the County’s and Caldwell’s motion for summary judgment on the Count One (TAC) First Amendment retaliation claim, Caldwell addresses the photograph: After Playford was convicted of violation of Penal Code section 148 in May 2012, he was arrested again at a multiple-fatality accident scene on May 25, 2012, also for interfering with deputies at a crime scene.16 Because of his increasingly                                                              The record is void of any evidence that the May 25, 2012, accident scene was a crime scene. See Leiserson, 184 Cal. App. 3d at 49 (“The appellate court only deferred to the trial court because there had been testimony, evidence, and determinations of credibility by the fact-finder on the “crucial issue” of whether the police officer’s order excluding Leiserson from the crash site was based on a belief by the officer that the site was a crime scene.”). At numerous points in Caldwell’s 16 68   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 86 of 135 aggressive behavior, on May 31, 2012, I sent a photograph of Playford to the front desk at the Sheriff’s Administrative Center on Ridgehaven Court for security concerns. The photograph was not distributed to deputies in the field. ER199. This is the photograph referenced by the district court as having been provided on May 31, 2012, after all four of Playford’s arrests. ER011. 2. The March 16, 2016, Deposition                                                              deposition she states that she is unfamiliar with the work of deputies in the field and at scenes. Only Deputy Seiver submitted any testimony and that was in the form of a declaration in support of the County’s and Caldwell’s summary judgment motion. ER203-ER206. The credibility issues with Deputy Seiver’s declaration as noted at Section I(c)(2) of the Argument. A partial transcript of Deputy Cook’s testimony in the state court criminal trial on Playford’s December 1, 2011, arrest was submitted in support of the County’s and Caldwell’s motion for summary judgment. ER209-ER301. The credibility issues with Deputy Cook’s testimony are noted at Section I(c)(3) of the Argument. There is no statement in the record by Allensworth, Proctor, or Breneman concerning the May 25, 2012, arrest for which Playford was found not guilty that “they arrested him [Playford] only for interfering with their duties and not in retaliation for anything.” ER011. Even if there were it is unlikely they would state that they arrested Playford on May 25, 2012, in retaliation for exercising his First Amendment rights. None of the First Amendment retaliation cases cited, at least in this brief, include evidence of a police officer stating in a deposition, declaration, affidavit, report or otherwise that his or her reason for placing an individual under arrest or searching and seizing property was to retaliate against the individual for exercising his or her First Amendment rights. 69   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 87 of 135 In a deposition taken on March 16, 2016, Caldwell testified that she knew of one photograph given to the headquarters lobby deputies “a few years ago of Mr. Playford.” ER129. The exchange of the photograph may have occurred when Bill Kolender was the SDC Sheriff before he retired in 2009. ER133 Caldwell did not recall the identity of the lobby deputy who received the photograph from her. ER132. Caldwell as the PIO was involved in providing Playford’s photograph to the lobby deputies because Playford had “alleged” to be media and because she had witnessed his conduct. ER135. Caldwell believes she told the deputy in the lobby: “This is a photograph of J.C. Playford. He is a person known to me that is antagonistic and aggressive, and I’m giving this photograph to you for deputy safety reasons.” ER135. According to Caldwell her concern was limited to headquarters because Playford visited that building frequently. ER136. Caldwell did not recall emailing the photograph to anyone or providing it to any other law enforcement agencies. ER137. When asked whether she would have placed the information or photograph into a computer for distribution to make everyone aware if there was a concern for deputy safety Caldwell indicated that there was such a system but that it was 70   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 88 of 135 not used in that circumstance (ER135) because the concern was limited to Playford’s access to headquarters.17 ER136. 3. The discrepancies between Caldwell’s deposition testimony and declaration addressed in Playford’s opposition to summary judgment In response to the County’s and Caldwell’s motion for summary judgment, Playford addressed the inconsistencies in Caldwell’s March 18, 2016, declaration and her March 16, 2016, deposition testimony. Caldwell testified that she did not know what the lobby deputy did with the photograph that she provided him or whether it was ever posted. ER135. Caldwell initially denied providing the photograph to Marine Corps Station Miramar ER137 when specifically asked but then recalled that she had provided the photograph in October 2015 in advance of a memorial service planned at Miramar for former San Diego County Sheriff Kolender. ER138.  Caldwell’s ability to locate Playford’s photograph in October 2015 more than 3 years after Playford filed a lawsuit referencing the photograph but not recalling where the                                                              This is contrary to Caldwell’s statement in her March 18, 2016, declaration which states that Playford had been arrested on May 25, 2012, (not at headquarters but at a traffic accident scene where he encountered 3 deputies, at least) and was becoming increasingly aggressive. ER199. 17 71   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 89 of 135 photograph was on March 16, 2016, when asked at deposition was argued in Playford’s summary judgment opposition as unreliable. Playford submitted a news article from March 30, 2011, with a photograph of a photograph of Playford above the words “Per Jan Caldwell J.C. Playford is no longer the Media” in opposition to the County’s motion for summary judgment. ER177. The caption underneath the news article photograph states: “Warning photo about JC. Playford posted at the San Diego Sheriff’s Headquarters in 2009.” ER177. Playford took a photograph of the photograph at the SDC sheriff’s headquarters in 2009 or 2010 and provided the photograph to the news reporter for the March 30, 2011, article. ER059, ER177. 4. Caldwell’s March 18, 2016, supplemental declaration and May 31, 2012, email In response to the issues raised regarding the photograph in Playford’s summary judgment opposition, Caldwell submitted a supplemental declaration and email. ER513-ER514. The district court relies on the supplemental declaration to find that “Caldwell indicates she did not disseminate the photograph beyond the lobby deputies and instructed them no further than letting them know the photograph was being kept for deputy safety.” ER003. This is in fact what Caldwell 72   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 90 of 135 declares under penalty of perjury in her April 22, 2016, supplemental declaration (ER513) her March 16, 2016, deposition testimony (ER135ER136) and her March 18, 2016, declaration. ER199. The email attached to the April 22, 2016, supplemental declaration begins with a greeting to “All” and continues: “The three attachments are photographs of JC Playford, Ed Peruta, and Ed Baier; well-known ‘journalists’ to SDPD and ourselves.” ER514. The quotes attached to the term ‘journalists’ reasonably implies a condescending negative view of Playford, Peruta, and Baier. Apparently, Caldwell knows the three are well-known to the entire San Diego Police Department and “ourselves” which reasonably means the entire SDC sheriff’s department. The email states that “we arrested him [Playford] again for 148 PC for interfering with the Ramona fatality.” ER514. The Ramona fatality is the May 25, 2012, multi-vehicle accident scene where Ramona Sentinel reporter Karen Brainerd and a local NBC news crew were allowed but Playford was excluded. In her email Caldwell does not refer to the scene as a crime scene as she does in the declaration submitted to the district court. ER199. 73   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 91 of 135 Contrary to Caldwell’s deposition testimony where she specifically stated that she did not disseminate Playford’s photograph beyond the lobby deputy because Playford frequented the lobby primarily so deputies in the field were not her concern the May 31, 2012, email references Playford’s visit to the Encinitas station and characterizes his visit with a pile of papers and loud voice as a “chronic issue.” ER514. Caldwell’s April 22, 2016, declaration continues to state that the photograph of Playford did not reach beyond the lobby deputy. ER514. The email concludes: “The more our troops know about these three, the safer I hope they are.” ER514. Caldwell’s March 18, 2016, declaration denies that the photograph submitted by Playford in his summary judgment opposition is the photograph she submitted to the lobby deputy. ER513. Despite submitting the May 31, 2012, email which she represents as having only been provided to the lobby deputy, Caldwell excludes from the email its attached photographs of Playford, Peruta, and Baier and fails to address the reason for their omission. ER514. 74   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 92 of 135 The use of photographs for officer safety concerns requires that the officers have access to and view the photographs. ER514. The email is addressed to three men:  Mike Barletta: In Gore v. San Diego County Civil Service Commission, 2014 WL 4628022 (Sept. 17, 2014) (3rd Dist. Cal.), the statement of facts include a review of an Internal Affairs Complaint by Mike Barletta in his capacity as the Imperial Beach Division Law Enforcement Commander for the Sheriff’s Department, Imperial Beach Subdivision for the County of San Diego.  Donald Fowler: Donald Fowler is referenced in paragraph 27(d) of Playford’s TAC as a twenty-five year veteran of the San Diego County Sheriff’s Department. ER370.  Timothy Curran The email is copied to Patricia Duke, David Myers, Susan Jankola, Melissa Aquino, and Adriana Uribe. ER514. The photograph provided to the lobby deputy prior to Bill Kolender’s retirement in 2009 who was instructed by Caldwell as she testified at her deposition, “This is a photograph of J.C. Playford. He is a person known to me that is antagonistic and aggressive, and I’m giving this photograph to you for deputy safety reasons” ER135 may or may not be the same photograph as the photograph that Playford observed in plain sight in the lobby in 2009 or 2010 and provided to the news reporter for print in the March 30, 2011, news article. ER059. 75   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 93 of 135 Caldwell described one photograph that she provided to a lobby deputy and another photograph that was attached to an email dated May 31, 2012, distributed to at least one San Diego County Sheriff’s Department Commander with instructions to use the photograph for officer safety. Caldwell has provided neither photograph. Her deposition testimony corroborates Playford’s allegations that Caldwell distributed a photograph in 2009 or 2010. ER135. A reasonable inference is that Caldwell communicated on more than one occasion concerning Playford. She characterized him as a “chronic issue” and presumed in her email to at least one commander that Playford, Peruta, and Baier were well-known to the SDPD and the Sheriff’s Department. ER514. Similarly, in an interview by a reporter for the North County Times Caldwell states: Well, Playford is known amongst the deputies, especially in North County, because he’s an issue. If I’m on scene, there’s an excellent chance that Playford will be there. Every contact I’ve had with him has been negative.” ER396. In her deposition Caldwell admitted to making this statement. ER141. She explains that the relationship with Playford has improved since making that statement in 2012 because on three occasions since he has been “well mannered.” 76   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 94 of 135 ER141. By Caldwell’s own testimony however the occasion of distributing Playford’s photograph to the lobby deputies is a different occasion then the photograph distributed to SDCSD Commander Mike Barletta for the “troops.” The former arose out of a concern limited to safety at SDCSD headquarters because that is where Playford frequented. The latter arose out of a concern for the “troops” in the field which explains its distribution to a field commander. ER011. Caldwell’s testimony is not credible regarding her distribution of the photographs. In her supplemental affidavit dated April 22, 2016, she states that she sent a photograph to the front desk at the Sheriff’s Administrative Center in Ridgehaven for security concerns, similar language used in her March 18, 2016, declaration. However, her May 31, 2012, email clearly shows that she sent the photograph to at least one SDCSD commander and a twenty-five year SDCSD veteran. A reasonable inference is that Donald Fowler and Timothy Curran share a similar hierarchical position in the department with the ability to jointly reach all of the deputies. ER514. If Caldwell can submit two declarations stating that she provided a photograph to the lobby deputy at the front desk of SDCSD 77   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 95 of 135 headquarters on May 31, 2012, when an email clearly shows that a photograph of Playford sent with the email was intended for every deputy in the field, then her testimony about a photograph of Playford that was distributed when Bill Kolender was the San Diego Sheriff prior to his retirement in 2009 is just as likely to have been sent to more than just the lobby deputy. Plainly, Caldwell was not truthful in her deposition testimony or her declarations with the reasonable inference that she did not want to disclose the fact that Playford was seen as a “chronic issue” and that he was well-known to the SDPD and the Sheriff’s Department. The focus on providing an email dated May 31, 2012, to remove the implications of a photograph provided in 2009 or 2010 just prior to the commencement of the chain of retaliatory events leading to Playford’s arrest was Caldwell described a photograph in her deposition and one declaration that that she handed the lobby deputy and just the lobby deputy. VII. DUMANIS IS NOT ENTITLED TO IMMUNITY FOR HER SELECTIVE RECOGNITION OF SAN DIEGO POLICE DEPARTMENT GOVERNMENT-ISSUED MEDIA CREDENTIALS IN HER DECISION AND POLICY TO EXCLUDE PLAYFORD FROM A PRESS CONFERENCE A. Standard Of Review 78   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 96 of 135 A dismissal for failure to state a claim pursuant to Rule 12(b)(6) is reviewed de novo. See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See id. Conclusory allegations and unwarranted inferences, however, are insufficient to defeat a motion to dismiss. See Sanders, 504 F.3d at 910; Cholla Ready Mix, Inc., 382 F.3d at 973. Note that the Supreme Court in Bell Atlantic Corp., 550 U.S. at 561-63 retired the “no-set-of-facts” test, explaining that dismissal does not require that it appear beyond doubt the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Id. (The “no set of facts” language “is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.”); see also Ashcroft, 556 U.S. at 670. Review is generally limited to the contents of the complaint. See Marder, 450 F.3d at 448 (“A court may consider evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no party questions the 79   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 97 of 135 authenticity of the copy attached to the 12(b)(6) motion.”). If matters outside the pleadings are considered, the motion to dismiss under Rule 12(b)(6) is treated as one for summary judgment. See Olsen, 363 F.3d at 921-922. B. The District Attorney Acted Administratively To Deny Playford Access To The Press Conference In Violation Of The First Amendment The district court granted SDC DA Dumanis qualified immunity against the Count One (SAC) First Amendment retaliation and Count Three (SAC) failure to train claims brought by Playford for excluding “Playford, a duly authorized representative of American News, from a news conference called by [Dumanis] on or about January 4, 2012, and attended by media with government-issued credentials.” ER421.18                                                              In a footnote the district court addressed the press conference exclusion: “The only basis for Plaintiffs’ claims against Dumanis is Playford’s exclusion from a press conference because he lacked credentials issued by SDPD. However, Plaintiffs have cited no authority requiring district attorneys to open press conferences to anyone claiming association with any news organization or recognizing a constitutional violation for precluding an individuals’ attendance at a press conference. At a minimum, any such right is certainly not clearly established. Reichle, 132 S.Ct. at 2093 (explaining that government officials are entitled to qualified immunity if ‘purported right was not clearly established by prior case law.’).” ER049 18 80   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 98 of 135 Prosecutors are entitled to qualified immunity, rather than absolute immunity, when they perform administrative functions, or “investigative functions normally performed by a detective or police officer.” Id. at 126. See also Burns v. Reed, 500 U.S. 478, 494-96 (1991). “Statements to the press may be an integral part of a prosecutor's job, see National District Attorneys Assn., National Prosecution Standards 107, 110 (2d ed. 1991), and they may serve a vital public function. But in these respects a prosecutor is in no different position than other executive officials who deal with the press...” Buckley v. Fitzsimmons, 509 U.S. 259, 278 (1993); accord Hawks v. Cnty. of Butte, 34 F.3d 1072 (9th Cir. 1994) (A prosecutor who makes statements at a press conference is acting outside the role of an officer of the court, even though this function may form an integral part of a district attorney's job.) C. The District Attorney Is Not Entitled To Qualified Immunity “Qualified immunity shields public officials from civil damages for performance of discretionary functions.” Mueller v. Auker, 576 F.3d 979, 992 (9th Cir. 2009). To determine whether a public official is protected by qualified immunity, we first consider whether the official's conduct 81   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 99 of 135 violated a constitutional right, and if so, then whether that right was clearly established at the time of the event in question. Id., 576 F.3d 993. 1. Playford is a member of the media It is also without a doubt Playford is a member of the media. He has American News media credentials and meets the definition of a statutory “duly authorized representative of any news service, newspaper, or radio or television station or network” as set forth in Penal Code § 409.5(d). “[T]he traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.” Branzburg, 408 U.S. at 704; Cf. In re Grand Jury Witnesses, 322 F.Supp. 573, 574 (ND Cal.1970). “Freedom of speech and freedom of the press…are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action.” Lovell v. City of Griffin, Ga., 303 U.S. 444, 450 (1938). “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the 82   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 100 of 135 defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Id, at 452. See also 705 Mills v. Alabama, 384 U.S. 214, 219 (1966); Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943). “The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.” Branzburg, 408 U.S. at 704–05. 2. The exclusion of a member of the media from a press conference violates the First Amendment The First Amendment right of access to the press conference was clearly established at the time of the conduct alleged in the complaint. It is without question, "Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded…" Branzburg, 408 U.S. at 684-85; however, it is also without question that newsmen have no less access than that of the general public to any area to which the general public has access. “The First and Fourteenth Amendments bar government from interfering in any way with a free press.” Pell v. Procunier, 417 U.S. 817, 834 (1974). While the 83   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 101 of 135 Constitution does not “…require government to accord the press special access to information not shared by members of the public generally.” Id. it does prohibit retaliatory actions based on First Amendment grounds. See Watson, 384 F. Supp. at 657-658 (The Mayor’s action in Borreca v. Fasi, 369 F.Supp. 906 (D. Haw. 1974) was based on his dislike for the manner in which that reporter and his newspaper reported the Mayor's activities. The Court felt that such intimidation or manipulation of press coverage violated the First Amendment.”).19                                                              See Telemundo of Los Angeles v. City of Los Angeles, 283 F.Supp.2d 1095, 1102 (C.D. Cal. 2003) (“Several courts have determined that discriminatory access to public forums or information is generally violative of the First Amendment.”); ABC v. Cuomo, 570 F.2d 1080, 1083 (2d Cir.1977) (“We think that once there is a public function, public comment, and participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable.”); See also cases cited in Emard v. Cnty. of Orange, No. G035913, 2007 WL 1493815, at *6 (Cal. Ct. App. May 23, 2007) for the proposition that it is unconstitutional to treat one member of the media less favorably than another: Stevens v. New York Racing Ass' n, Inc., 665 F.Supp. 164, 175 (E.D.N.Y. 1987) (the plaintiff photojournalist was prohibited from bringing his camera into the racetrack paddock areas that were otherwise open to all other journalists; United Teachers of Dade v. Stierheim, 213 F.Supp.2d 1368 (S.D. Fla. 2002) (access to press room); American Broadcasting Companies, Inc. v. Cuomo, 570 F.2d 1080, 1083 (2d Cir. 1977) (access to post-election activities at candidates' headquarters); Westinghouse Broadcasting Co. v. Dukakis, 409 F.Supp. 895 (D. Mass. 1976) ( access to city council meetings); Telemundo of Los Angeles v. City of Los 19 84   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 102 of 135 To demonstrate a violation of the First Amendment, a plaintiff must allege that “by his actions [the defendant] deterred or chilled [the plaintiff's] political speech and such deterrence was a substantial or motivating factor in [the defendant's] conduct.” Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.1999) citing Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994). Exclusion from a press conference chills and inhibits the opportunity to gather news, ask questions, and test the credibility of officials. Thus, to establish a First Amendment claim, “the proper inquiry asks ‘whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities.” Id. SAC ¶ 234 ER460 alleges Dumanis, as a district attorney, is a county employee; therefore, subject to § 1983. As the District attorney, she was “…an official policymaker for the County.” Hawks, 34 F.3d 1072 and therefore responsible for the actions of her office. “[I]t is clear                                                              Angeles, 283 F.Supp.2d 1095, 1102 (C.D. Cal. 2003) (access to ceremony commemorating Mexican War); Times-Picayune Pub. Corp. v. Lee, 15 Media L. Rep. 1713, 1988 WL 36491 (E.D. La. 1988) (notice of and access to press conferences). 85   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 103 of 135 that the district attorney acts on behalf of the state when conducting prosecutions, but that the local administrative policies …are distinct from the prosecutorial act.” Goldstein v. City of Long Beach, 715 F.3d 750, 759 (9th Cir. 2013). The court in this matter erred in its dismissal of the claim against Dumanis related to the press conference premised on her decision to prosecute instead of her prohibited First Amendment related action. ER050. Dumanis “…is not entitled to absolute immunity…” Hawks, 34 F.3d 1072 for her actions in excluding Playford from the press conference because a “…press conference is acting outside the role of an officer of the court, even though this function may form an integral part of a district attorney's job.” Id. In Hawks, when the District Attorney made statements at the press conference called the plaintiff “…mentally incompetent and an obviously handicapped defendant. ”34 F.3d 1072 those actions were found to be outside the role of an officer of the court, even though an integral part of a district attorney's job. Id. The SAC alleges that Dumanis’ office prosecuted Playford for three separate arrests prior to January 4, 2012, when she excluded Playford from the press conference. ER457. This conduct is within the 86   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 104 of 135 scope of Dumanis’ advocacy role and barred from civil action by absolute immunity but the retaliatory animus underlying those prosecutions can still be used to show that but for this retaliatory animus Playford would not have been excluded from the press conference. Playford sets forth a cognizable claim as the First Amendment right he alleges was violated has been clearly established under Branzburg, Pell and Lovell. The retaliatory actions taken by Dumanis were clearly sufficient to chill a person of ordinary firmness pursuant to Mendocino Envtl. Ctr. Dumanis by acting outside her role as an advocate, cannot raise quasi-prosecutorial immunity; therefore, claims against the institutional defendants such as Dumanis who is sued in her official capacity (ER426) should be permitted to go forward because liability may be imposed for constitutional deprivations inflicted pursuant to an official policy or custom. See Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690-94 (1978). “In this circuit, a claim of municipal liability under section 1983 is sufficient to withstand a motion to dismiss ‘even if the claim is based on nothing more than a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice.’” Karim-Panahi v. Los Angeles Police Dep't, 87   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 105 of 135 839 F.2d 621, 624 (9th Cir. 1988) citing Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986); accord Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993). Quasi-prosecutorial immunity also cannot bar suits for injunctive relief pursuant to Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 736–37 (1980) and Pulliam v. Allen, 466 U.S. 522, 541-42, (1984) (judicial immunity does not bar prospective injunctive relief); Ashelman v. Pope, 793 F.2d 1072, 1075–76 (9th Cir.1986) (en banc) (same). VIII. THE DISTRICT COURT WRONGLY DISMISSED ALL CLAIMS BY AMERICAN NEWS A. Standard Of Review A dismissal for failure to state a claim pursuant to Rule 12(b)(6) is reviewed de novo. See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See id. B.   American News Has Standing To Assert Claims American News sufficiently alleged claims in Count One for First Amendment retaliation, Count Two for Fourth Amendment illegal seizure and search, Count Three for failure to train, and Count Six 88   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 106 of 135 under the federal Privacy Protection Act of the Second Amended Complaint. The District Court dismissed the claims brought by American News because it found the SAC did not allege that SDCSD deputies took any action against Peruta during the March 15, 2012 incident other than advising the casino that Playford and Peruta did not have SDPD issued media credentials ER048 and are no other allegations specific to Peruta or American News and Plaintiffs fail to explain in opposing the motion to dismiss how County Defendants' conduct gives rise to any claim by Peruta or American News. ER049. The Supreme Court of the United States has recognized that First Amendment protection extends to corporations. Bellotti, 435 U.S. at 778 n. 14. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000) (striking down content-based restriction). Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See Bellotti, 435 U.S. at 784. “Government may commit a constitutional wrong when by law it 89   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 107 of 135 identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker's voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Citizens United, 558 U.S. at 340-41.   Just as “[d]irectors or officers of corporation may be liable, under rules of tort and agency, for tortious acts committed on behalf of corporation.” Michaelis v. Benavides, 61 Cal. App. 4th 681, 71 Cal. Rptr. 2d 776 (1998) so too must anyone who acts against a corporation through its agents be liable to that corporation. SAC properly asserts American News is directly impacted by the treatment of Playford and Peruta because they do not have government-issued credentials and accordingly the dismissal of the claims brought by American News was error. 90   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 108 of 135 CONCLUSION Playford and American News appeal for relief as follows; 1. Reverse the grant of immunity to the five-individually named deputies and Dumanis in Count One (SAC) First Amendment retaliation; 2. Reverse summary judgment granted to San Diego County and Caldwell in Count One (TAC) First Amendment retaliation; 3. Reverse the dismissal of Count Two (SAC) First and Fourth Amendment failure to train against Caldwell and summary judgment to San Diego County in Count Two (TAC) First and Fourth Amendment failure to train; 4. Reverse grant of immunity to the five-individually-named deputies in Count Three (SAC) Fourth Amendment illegal seizure and search; 5. Reverse dismissal of federal Privacy Protection Act claims in Count Six (SAC); 6. Reverse dismissal of Count Seven (TAC) Fourth Amendment false arrest claims against Allensworth, Breneman, and Proctor; 91   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 109 of 135 7. Reverse dismissal of American News’ claims in Count One (SAC), Count Two (SAC), Count Three (SAC), and Count Six (SAC); and 8. Remand for further proceedings. STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, undersigned counsel states that there are no pending (a) cases arising out of the same or consolidated cases in the district court or agency; (b) cases previously heard in this Circuit which concern the case being briefed; or (c) cases involving the same transaction or event. Counsel is not aware of pending cases in this Circuit which raise the same or closely related issues. Date: February 21, 2017 Rachel M. Baird & Associate __________________________________ Rachel M. Baird Attorney for Appellant American News and Information Services, Inc. 92   Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 110 of 135 Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28-1.1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 16-55770 Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief. I certify that (check appropriate option): This brief complies with the length limits permitted by Ninth Circuit Rule 28-1.1. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief complies with the length limits permitted by Ninth Circuit Rule 32-1. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b). The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief complies with the longer length limit authorized by court order dated The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2 (a) and is 19218 words or pages, excluding the portions exempted by Fed. R. App. P. 32 (f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6). This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2 (c)(2) or (3) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief complies with the length limits set forth at Ninth Circuit Rule 32-4. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). Signature of Attorney or s/ Rachel M. Baird Unrepresented Litigant Date 02/22/2017 ("s/" plus typed name is acceptable for electronically-filed documents) (Rev.12/1/16) Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 111 of 135 CERTIFICATE OF SERVICE I hereby certify that on February 22, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. Date: February 24, 2017 Rachel M. Baird & Associate __________________________________ Rachel M. Baird Attorney for Appellant American News and Information Services, Inc. Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 112 Of 135 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 113 of 135 ADDENDUM TABLE OF CONTENTS Page FIRST AMENDMENT ............................................................................... 1 FOURTH AMENDMENT .......................................................................... 2 FOURTEENTH AMENDMENT ................................................................ 3 42 U.S.C. § 1983.......................................................................................... 5 42 U.S.C. § 2000aa...................................................................................... 6 42 U.S.C. § 2000aa-6 .................................................................................. 9 42 U.S.C. § 2000aa-7 ................................................................................ 12 CALIFORNIA PENAL CODE § 148 ........................................................ 14 CALIFORNIA PENAL CODE § 409.5 ..................................................... 17 CALIFORNIA PENAL CODE § 415 ........................................................ 19 CALIFORNIA PENAL CODE § 1016 ...................................................... 21 i Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 114 of 135 Amendment I. Establishment of Religion; Free Exercise of..., USCA CONST Amend. I United States Code Annotated Constitution of the United States Annotated Amendment I. Religion; Speech and the Press; Assembly; Petition U.S.C.A. Const. Amend. I Amendment I. Establishment of Religion; Free Exercise of Religion; Freedom of Speech and the Press; Peaceful Assembly; Petition for Redress of Grievances Currentness Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S.C.A. Const. Amend. I, USCA CONST Amend. I Current through P.L. 114-316. Also includes P.L. 114-318 to 114-321, 114-323 to 114-327, and 115-1 to 115-3. Title 26 current through 115-3. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 A1 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 115 of 135 Amendment IV. Searches and Seizures; Warrants, USCA CONST Amend. IV-Search... United States Code Annotated Constitution of the United States Annotated Amendment IV. Searches and Seizures; Warrants U.S.C.A. Const. Amend. IV-Search and Seizure; Warrants Amendment IV. Searches and Seizures; Warrants Currentness The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S.C.A. Const. Amend. IV-Search and Seizure; Warrants, USCA CONST Amend. IV-Search and Seizure; Warrants Current through P.L. 114-316. Also includes P.L. 114-318 to 114-321, 114-323 to 114-327, and 115-1 to 115-3. Title 26 current through 115-3. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 A2 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 116 of 135 AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND..., USCA CONST Amend.... United States Code Annotated Constitution of the United States Annotated Amendment XIV. Citizenship; Privileges and Immunities; Due Process; Equal Protection; Apportionment of Representation; Disqualification of Officers; Public Debt; Enforcement U.S.C.A. Const. Amend. XIV-Full Text AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND IMMUNITIES; DUE PROCESS; EQUAL PROTECTION; APPOINTMENT OF REPRESENTATION; DISQUALIFICATION OF OFFICERS; PUBLIC DEBT; ENFORCEMENT Currentness Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 A3 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 117 of 135 AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND..., USCA CONST Amend....
U.S.C.A. Const. Amend. XIV-Full Text, USCA CONST Amend. XIV-Full Text Current through P.L. 114-316. Also includes P.L. 114-318 to 114-321, 114-323 to 114-327, and 115-1 to 115-3. Title 26 current through 115-3. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 A4 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 118 of 135 § 1983. Civil action for deprivation of rights, 42 USCA § 1983 KeyCite Yellow Flag - Negative Treatment Unconstitutional or PreemptedLimited on Preemption Grounds by Molinelli-Freytes v. University of Puerto Rico, D.Puerto Rico, July 27, 2010 United States Code Annotated Title 42. The Public Health and Welfare Chapter 21. Civil Rights (Refs & Annos) Subchapter I. Generally 42 U.S.C.A. § 1983 § 1983. Civil action for deprivation of rights Effective: October 19, 1996 Currentness Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. CREDIT(S) (R.S. § 1979; Pub.L. 96-170, § 1, Dec. 29, 1979, 93 Stat. 1284; Pub.L. 104-317, Title III, § 309(c), Oct. 19, 1996, 110 Stat. 3853.) Notes of Decisions (5755) 42 U.S.C.A. § 1983, 42 USCA § 1983 Current through P.L. 114-316. Also includes P.L. 114-318 to 114-321, 114-323 to 114-327, and 115-1 to 115-3. Title 26 current through 115-3. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 A5 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 119 of 135 § 2000aa. Searches and seizures by government officers and..., 42 USCA § 2000aa United States Code Annotated Title 42. The Public Health and Welfare Chapter 21A. Privacy Protection Subchapter I. First Amendment Privacy Protection Part A. Unlawful Acts 42 U.S.C.A. § 2000aa § 2000aa. Searches and seizures by government officers and employees in connection with investigation or prosecution of criminal offenses Effective: September 30, 1996 Currentness (a) Work product materials Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if-- (1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of Title 18, or section 2274, 2275 or 2277 of this title, or section 783 of Title 50, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of Title 18); or (2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being. (b) Other documents Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize documentary materials, other than work product materials, possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 A6 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 120 of 135 § 2000aa. Searches and seizures by government officers and..., 42 USCA § 2000aa other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if-- (1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of Title 18, or section 2274, 2275, or 2277 of this title, or section 783 of Title 50, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of Title 18); (2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being; (3) there is reason to believe that the giving of notice pursuant to a subpena duces tecum would result in the destruction, alteration, or concealment of such materials; or (4) such materials have not been produced in response to a court order directing compliance with a subpena duces tecum, and-- (A) all appellate remedies have been exhausted; or (B) there is reason to believe that the delay in an investigation or trial occasioned by further proceedings relating to the subpena would threaten the interests of justice. (c) Objections to court ordered subpoenas; affidavits In the event a search warrant is sought pursuant to paragraph (4)(B) of subsection (b) of this section, the person possessing the materials shall be afforded adequate opportunity to submit an affidavit setting forth the basis for any contention that the materials sought are not subject to seizure. CREDIT(S) (Pub.L. 96-440, Title I, § 101, Oct. 13, 1980, 94 Stat. 1879; Pub.L. 104-208, Div. A, Title I, § 101(a) [Title I, § 121, subsec. 6], Sept. 30, 1996, 110 Stat. 3009-30.) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 A7 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 121 of 135 § 2000aa. Searches and seizures by government officers and..., 42 USCA § 2000aa Notes of Decisions (20) 42 U.S.C.A. § 2000aa, 42 USCA § 2000aa Current through P.L. 114-316. Also includes P.L. 114-318 to 114-321, 114-323 to 114-327, and 115-1 to 115-3. Title 26 current through 115-3. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 A8 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 122 of 135 § 2000aa-6. Civil actions by aggrieved persons, 42 USCA § 2000aa-6 United States Code Annotated Title 42. The Public Health and Welfare Chapter 21A. Privacy Protection Subchapter I. First Amendment Privacy Protection Part B. Remedies, Exceptions, and Definitions 42 U.S.C.A. § 2000aa-6 § 2000aa-6. Civil actions by aggrieved persons Currentness (a) Right of action A person aggrieved by a search for or seizure of materials in violation of this chapter shall have a civil cause of action for damages for such search or seizure-- (1) against the United States, against a State which has waived its sovereign immunity under the Constitution to a claim for damages resulting from a violation of this chapter, or against any other governmental unit, all of which shall be liable for violations of this chapter by their officers or employees while acting within the scope or under color of their office or employment; and (2) against an officer or employee of a State who has violated this chapter while acting within the scope or under color of his office or employment, if such State has not waived its sovereign immunity as provided in paragraph (1). (b) Good faith defense It shall be a complete defense to a civil action brought under paragraph (2) of subsection (a) of this section that the officer or employee had a reasonable good faith belief in the lawfulness of his conduct. (c) Official immunity The United States, a State, or any other governmental unit liable for violations of this chapter under subsection (a)(1) of this section, may not assert as a defense to a claim arising under this chapter the immunity of the officer or employee whose violation is complained of or his reasonable good faith belief in the lawfulness of his conduct, except that such a defense may be asserted if the violation complained of is that of a judicial officer. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 A9 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 123 of 135 § 2000aa-6. Civil actions by aggrieved persons, 42 USCA § 2000aa-6 (d) Exclusive nature of remedy The remedy provided by subsection (a)(1) of this section against the United States, a State, or any other governmental unit is exclusive of any other civil action or proceeding for conduct constituting a violation of this chapter, against the officer or employee whose violation gave rise to the claim, or against the estate of such officer or employee. (e) Admissibility of evidence Evidence otherwise admissible in a proceeding shall not be excluded on the basis of a violation of this chapter. (f) Damages; costs and attorneys’ fees A person having a cause of action under this section shall be entitled to recover actual damages but not less than liquidated damages of $1,000, and such reasonable attorneys’ fees and other litigation costs reasonably incurred as the court, in its discretion, may award: Provided, however, That the United States, a State, or any other governmental unit shall not be liable for interest prior to judgment. (g) Attorney General; claims settlement; regulations The Attorney General may settle a claim for damages brought against the United States under this section, and shall promulgate regulations to provide for the commencement of an administrative inquiry following a determination of a violation of this chapter by an officer or employee of the United States and for the imposition of administrative sanctions against such officer or employee, if warranted. (h) Jurisdiction The district courts shall have original jurisdiction of all civil actions arising under this section. CREDIT(S) (Pub.L. 96-440, Title I, § 106, Oct. 13, 1980, 94 Stat. 1880.) Notes of Decisions (12) 42 U.S.C.A. § 2000aa-6, 42 USCA § 2000aa-6 Current through P.L. 114-316. Also includes P.L. 114-318 to 114-321, 114-323 to 114-327, and 115-1 to 115-3. Title 26 current through 115-3. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 A10 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 124 of 135 § 2000aa-6. Civil actions by aggrieved persons, 42 USCA § 2000aa-6 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 A11 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 125 of 135 § 2000aa-7. Definitions, 42 USCA § 2000aa-7 United States Code Annotated Title 42. The Public Health and Welfare Chapter 21A. Privacy Protection Subchapter I. First Amendment Privacy Protection Part B. Remedies, Exceptions, and Definitions 42 U.S.C.A. § 2000aa-7 § 2000aa-7. Definitions Currentness (a) “Documentary materials”, as used in this chapter, means materials upon which information is recorded, and includes, but is not limited to, written or printed materials, photographs, motion picture films, negatives, video tapes, audio tapes, and other mechanically, magentically1 or electronically recorded cards, tapes, or discs, but does not include contraband or the fruits of a crime or things otherwise criminally possessed, or property designed or intended for use, or which is or has been used as, the means of committing a criminal offense. (b) “Work product materials”, as used in this chapter, means materials, other than contraband or the fruits of a crime or things otherwise criminally possessed, or property designed or intended for use, or which is or has been used, as the means of committing a criminal offense, and-- (1) in anticipation of communicating such materials to the public, are prepared, produced, authored, or created, whether by the person in possession of the materials or by any other person; (2) are possessed for the purposes of communicating such materials to the public; and (3) include mental impressions, conclusions, opinions, or theories of the person who prepared, produced, authored, or created such material. (c) “Any other governmental unit”, as used in this chapter, includes the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, and any local government, unit of local government, or any unit of State government. CREDIT(S) (Pub.L. 96-440, Title I, § 107, Oct. 13, 1980, 94 Stat. 1881.) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 A12 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 126 of 135 § 2000aa-7. Definitions, 42 USCA § 2000aa-7 Notes of Decisions (1) Footnotes 1 So in original. Probably should be “magnetically”. 42 U.S.C.A. § 2000aa-7, 42 USCA § 2000aa-7 Current through P.L. 114-316. Also includes P.L. 114-318 to 114-321, 114-323 to 114-327, and 115-1 to 115-3. Title 26 current through 115-3. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 A13 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 127 of 135 § 148. Resisting, delaying or obstructing officer or emergency..., CA PENAL § 148 West’s Annotated California Codes Penal Code (Refs & Annos) Part 1. Of Crimes and Punishments (Refs & Annos) Title 7. Of Crimes Against Public Justice (Refs & Annos) Chapter 7. Other Offenses Against Public Justice (Refs & Annos) This section has been updated. Click here for the updated version. West’s Ann.Cal.Penal Code § 148 § 148. Resisting, delaying or obstructing officer or emergency medical technician; interference with public safety radio communications; removal or taking of weapon; punishment Effective: October 1, 2011 to December 31, 2015 (a)(1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment. (2) Except as provided by subdivision (d) of Section 653t, every person who knowingly and maliciously interrupts, disrupts, impedes, or otherwise interferes with the transmission of a communication over a public safety radio frequency shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment. (b) Every person who, during the commission of any offense described in subdivision (a), removes or takes any weapon, other than a firearm, from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170. (c) Every person who, during the commission of any offense described in subdivision (a), removes or takes a firearm from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment pursuant to subdivision (h) of Section 1170. (d) Except as provided in subdivision (c) and notwithstanding subdivision (a) of Section 489, every person who removes or takes without intent to permanently deprive, or who attempts to remove or take a firearm from the person of, or immediate presence of, a public officer or peace officer, while the officer is engaged in the performance of his or her lawful duties, shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170. In order to prove a violation of this subdivision, the prosecution shall establish that the defendant had the specific intent to © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 A14 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 128 of 135 § 148. Resisting, delaying or obstructing officer or emergency..., CA PENAL § 148 remove or take the firearm by demonstrating that any of the following direct, but ineffectual, acts occurred: (1) The officer’s holster strap was unfastened by the defendant. (2) The firearm was partially removed from the officer’s holster by the defendant. (3) The firearm safety was released by the defendant. (4) An independent witness corroborates that the defendant stated that he or she intended to remove the firearm and the defendant actually touched the firearm. (5) An independent witness corroborates that the defendant actually had his or her hand on the firearm and tried to take the firearm away from the officer who was holding it. (6) The defendant’s fingerprint was found on the firearm or holster. (7) Physical evidence authenticated by a scientifically verifiable procedure established that the defendant touched the firearm. (8) In the course of any struggle, the officer’s firearm fell and the defendant attempted to pick it up. (e) A person shall not be convicted of a violation of subdivision (a) in addition to a conviction of a violation of subdivision (b), (c), or (d) when the resistance, delay, or obstruction, and the removal or taking of the weapon or firearm or attempt thereof, was committed against the same public officer, peace officer, or emergency medical technician. A person may be convicted of multiple violations of this section if more than one public officer, peace officer, or emergency medical technician are victims. (f) This section shall not apply if the public officer, peace officer, or emergency medical technician is disarmed while engaged in a criminal act. Credits (Enacted in 1872. Amended by Stats.1957, c. 139, p. 742, § 30; Stats.1983, c. 73, § 1; Stats.1987, c. 257, § 1; Stats.1989, c. 1005, § 1; Stats.1990, c. 1181 (A.B.1925), § 1; Stats.1997, c. 111 (S.B.282), § 1; Stats.1997, c. 464 (S.B.57), § 1; Stats.1999, c. 853 (S.B.832), § 8; Stats.2011, c. 15 (A.B.109), § 258, eff. April 4, 2011, operative Oct. 1, 2011.) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 A15 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 129 of 135 § 148. Resisting, delaying or obstructing officer or emergency..., CA PENAL § 148 West’s Ann. Cal. Penal Code § 148, CA PENAL § 148 Current with all 2016 Reg.Sess. laws, Ch. 8 of 2015-2016 2nd Ex.Sess., and all propositions on 2016 ballot. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 A16 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 130 of 135 § 409.5. Authority of peace officers, lifeguard or marine safety..., CA PENAL § 409.5 West’s Annotated California Codes Penal Code (Refs & Annos) Part 1. Of Crimes and Punishments (Refs & Annos) Title 11. Of Crimes Against the Public Peace West’s Ann.Cal.Penal Code § 409.5 § 409.5. Authority of peace officers, lifeguard or marine safety officer to close disaster area; exclusion from police command post area; unauthorized entry; exception Currentness (a) Whenever a menace to the public health or safety is created by a calamity including a flood, storm, fire, earthquake, explosion, accident, or other disaster, officers of the Department of the California Highway Patrol, police departments, marshal’s office or sheriff’s office, any officer or employee of the Department of Forestry and Fire Protection designated a peace officer by subdivision (g) of Section 830.2, any officer or employee of the Department of Parks and Recreation designated a peace officer by subdivision (f) of Section 830.2, any officer or employee of the Department of Fish and Game designated a peace officer under subdivision (e) of Section 830.2, and any publicly employed full-time lifeguard or publicly employed full-time marine safety officer while acting in a supervisory position in the performance of his or her official duties, may close the area where the menace exists for the duration thereof by means of ropes, markers, or guards to any and all persons not authorized by the lifeguard or officer to enter or remain within the enclosed area. If the calamity creates an immediate menace to the public health, the local health officer may close the area where the menace exists pursuant to the conditions set forth in this section. (b) Officers of the Department of the California Highway Patrol, police departments, marshal’s office or sheriff’s office, officers of the Department of Fish and Game designated as peace officers by subdivision (e) of Section 830.2, or officers of the Department of Forestry and Fire Protection designated as peace officers by subdivision (g) of Section 830.2 may close the immediate area surrounding any emergency field command post or any other command post activated for the purpose of abating any calamity enumerated in this section or any riot or other civil disturbance to any and all unauthorized persons pursuant to the conditions set forth in this section whether or not the field command post or other command post is located near to the actual calamity or riot or other civil disturbance. (c) Any unauthorized person who willfully and knowingly enters an area closed pursuant to subdivision (a) or (b) and who willfully remains within the area after receiving notice to evacuate or leave shall be guilty of a misdemeanor. (d) Nothing in this section shall prevent a duly authorized representative of any news service, newspaper, or radio or television station or network from entering the areas closed pursuant to this section. Credits (Added by Stats.1957, c. 1402, p. 2737, § 1. Amended by Stats.1965, c. 212, p. 1177, § 1; Stats.1969, c. 1096, p. 2096, § 1; © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 A17 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 131 of 135 § 409.5. Authority of peace officers, lifeguard or marine safety..., CA PENAL § 409.5 Stats.1977, c. 687, p. 2217, § 1; Stats.1981, c. 600, p. 2316, § 1; Stats.1983, c. 227, § 1; Stats.1987, c. 736, § 1; Stats.1989, c. 1165, § 17; Stats.1990, c. 82 (S.B.655), § 6, eff. May 3, 1990; Stats.1990, c. 1695 (S.B.2140), § 8; Gov.Reorg.Plan No. 1 of 1995, § 43, eff. July 12, 1995; Stats.1996, c. 305 (A.B.3103), § 44.) Notes of Decisions (8) West’s Ann. Cal. Penal Code § 409.5, CA PENAL § 409.5 Current with all 2016 Reg.Sess. laws, Ch. 8 of 2015-2016 2nd Ex.Sess., and all propositions on 2016 ballot. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 A18 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 132 of 135 § 415. Fighting; noise; offensive words, CA PENAL § 415 KeyCite Yellow Flag - Negative Treatment Unconstitutional or PreemptedPrior Version Recognized as Unconstitutional by In re Cesar V., Cal.App. 6 Dist., Feb. 15, 2011 West’s Annotated California Codes Penal Code (Refs & Annos) Part 1. Of Crimes and Punishments (Refs & Annos) Title 11. Of Crimes Against the Public Peace West’s Ann.Cal.Penal Code § 415 § 415. Fighting; noise; offensive words Currentness Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction. Credits (Added by Stats.1974, c. 1263, p. 2742, § 2. Amended by Stats.1976, c. 298, p. 606, § 1; Stats.1983, c. 1092, § 283, eff. Sept. 27, 1983, operative Jan. 1, 1984.) Notes of Decisions (57) West’s Ann. Cal. Penal Code § 415, CA PENAL § 415 Current with all 2016 Reg.Sess. laws, Ch. 8 of 2015-2016 2nd Ex.Sess., and all propositions on 2016 ballot. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 A19 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 133 of 135 § 415. Fighting; noise; offensive words, CA PENAL § 415 Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 A20 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 134 of 135 § 1016. Kinds of pleas; entry of multiple plea; presumption of..., CA PENAL § 1016 West’s Annotated California Codes Penal Code (Refs & Annos) Part 2. Of Criminal Procedure (Refs & Annos) Title 6. Pleadings and Proceedings Before Trial (Refs & Annos) Chapter 4. Plea (Refs & Annos) West’s Ann.Cal.Penal Code § 1016 § 1016. Kinds of pleas; entry of multiple plea; presumption of sanity; change of plea; admission by plea of not guilty by reason of insanity without pleading not guilty Currentness There are six kinds of pleas to an indictment or an information, or to a complaint charging a misdemeanor or infraction: 1. Guilty. 2. Not guilty. 3. Nolo contendere, subject to the approval of the court. The court shall ascertain whether the defendant completely understands that a plea of nolo contendere shall be considered the same as a plea of guilty and that, upon a plea of nolo contendere, the court shall find the defendant guilty. The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes. In cases other than those punishable as felonies, the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based. 4. A former judgment of conviction or acquittal of the offense charged. 5. Once in jeopardy. 6. Not guilty by reason of insanity. A defendant who does not plead guilty may enter one or more of the other pleas. A defendant who does not plead not guilty by reason of insanity shall be conclusively presumed to have been sane at the time of the commission of the offense charged; provided, that the court may for good cause shown allow a change of plea at any time before the commencement of the trial. A defendant who pleads not guilty by reason of insanity, without also pleading not guilty, thereby admits the commission of © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 A21 Case: 16-55770, 02/22/2017, ID: 10332841, DktEntry: 20, Page 135 of 135 § 1016. Kinds of pleas; entry of multiple plea; presumption of..., CA PENAL § 1016 the offense charged. Credits (Enacted in 1872. Amended by Code Am.1880, c. 118, p. 44, § 2; Stats.1927, c. 677, p. 1148, § 1; Stats.1951, c. 1674, p. 3843, § 81; Stats.1963, c. 2128, p. 4418, § 1; Stats.1975, c. 687, p. 1635, § 1; Stats.1976, c. 1088, p. 4930, § 1; Stats.1982, c. 390, p. 1725, § 3; Stats.1998, c. 931 (S.B.2139), § 385, eff. Sept. 28, 1998.) Editors’ Notes LAW REVISION COMMISSION COMMENTS 1998 Amendment Section 1016 is amended to accommodate unification of the municipal and superior courts in a county. Cal. Const. art. VI, § 5(e). Cf. Section 691 & Comment. [28 Cal.L.Rev.Comm. Reports 51 (1998)]. OFFICIAL FORMS 2017 Electronic Pocket Part Update Notes of Decisions (418) West’s Ann. Cal. Penal Code § 1016, CA PENAL § 1016 Current with all 2016 Reg.Sess. laws, Ch. 8 of 2015-2016 2nd Ex.Sess., and all propositions on 2016 ballot. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 A22