No. C 06-05517 MHP.United States District Court, N.D. California.
June 20, 2008
MEMORANDUM ORDER Re: Plaintiffs’ Motion for Sanctions
MARILYN PATEL, District Judge
On September 8, 2006 plaintiffs Joseph Cuviello and Deniz Bolbol filed an action against the City of Oakland, Alameda County, Oakland-Alameda County Coliseum Authority, Oakland Coliseum Joint Venture, L.L.C., SMG — a foreign corporation, Oakland Police Department Officers R. Valladon and R. Villegas and Oakland Coliseum Assistant Security Manager Leroy “Skeet” Ellis claiming violations of their civil rights. This court issued a preliminary injunction. Plaintiffs have now moved for sanctions against defendants for an alleged violation of the preliminary injunction. Having considered the parties’ arguments and submissions and for the reasons set forth below, the court rules as follows.
BACKROUND
On August 14, 2007 this court granted plaintiffs a preliminary injunction with respect to circus events scheduled for later that week at the Oakland Coliseum. See Docket No. 47 (hereinafter “Injunction Order”). The order enjoined defendants from: “(1) requiring Plaintiffs to purchase a ticket in order to enter the north ramp of the Coliseum and videotape circus animals from the north ramp landing; (2) refusing to permit Plaintiffs and up to four additional persons acting in concert with Plaintiffs to stand at or near the railway of the north ramp landing in order to photograph or
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videotape circus animals; and (3) harassing or preventing Plaintiffs from reaching the north ramp landing, absent a law violation.”[1] Id. at 10-11.
From August 16 to 19, 2007 the Ringling Brothers Circus held performances at the Oakland Coliseum (“Coliseum”). Cuviello Dec. ¶ 6. During this time, plaintiffs sought to exercise their right to free speech by videotaping circus animals from a vantage point on the north landing above the arena entrance.[2] Id. ¶¶ 3, 6; Bolbol Dec. ¶ 3.
The north landing could generally be reached via five routes: the east and west staircases, the east and west ramps and a walkway leading from the south entrance. Docket No. 72, February 5, 2008 Evidentiary Hearing Transcript (hereinafter “Tr.”) at 57:1-13. The east ramp was open to the public at all times during the circus. Id. at 36, 101-02, 177-78, 203. However, event personnel sometimes blocked the east staircase. Id. at 99-100. The west staircase was closed throughout the duration of the event. See Pl.’s Exh. 3, Clips 1-21. It is unclear whether the west ramp was closed or open to the public throughout the duration of the circus. The court conjectures that plaintiffs were not able to access the north landing via the walkway from the south entrance, since defendants failed to raise such an argument.
In preparation for the event, Oakland-Alameda Coliseum Authority contracted with Oakland Coliseum Joint Venture, L.L.C., a subsidiary of SMG, to provide security guards during the four day event period. Tr. at 93; Docket No. 60, First Amended Complaint, ¶ 12. The attorney representing defendants, Ed Baldwin, notified Coliseum Assistant Security Manager Ellis of the injunction on August 15, 2007, the day before opening night. Tr. at 95-96, 196. Ellis briefed his security force an hour prior to performances on each day of the circus based on his understanding of the injunction. Id. at 120-22.
Ringling Brother Circus also hired additional police officers, employed by City of Oakland, to supplement security. Id. at 94, 140:19-22. Sergeant Patrick Gonzales, who supervised a detail of officers during two days of the event, testified that he had no knowledge of the injunction prior to or upon his arrival at the Coliseum.[3] Id. at 140, 145, 148-51. Gonzales first became aware of the court order when Cuviello handed him a copy on the third day of the circus, Saturday, August 18.
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A. Pre-Event Occurrences
Circus animals were to enter the Coliseum through a tunnel at the north entrance of the arena. See Injunction Order at 2:14-17. The tunnel is flanked by two staircases, one on each side, which lead from the north parking lot to a twenty foot landing directly above the tunnel entrance (“north landing”). See id. at 2:12-14; Pl.’s Exh. 3, Clips 3, 5. Next to each staircase are ramps, the east and west ramp, which also lead to the north landing. Id.
Plaintiffs sought to position themselves on the north landing to overlook the tunnel and film the animals as they entered the arena. Id.
Prior to opening night, event personnel erected a mobile barrier on the north landing, parallel to the railing which borders the edge of the north landing and directly overlooks the tunnel entrance, to restrict patrons from accessing an area approximately twelve to sixteen feet long and four to six feet deep (“railway barrier”). Ellis Dec. ¶ 6; Tr. at 125:4-7; Injunction Order at 2:13-14. The railway barrier was constructed using portable bicycle racks and yellow tape and remained standing throughout the duration of the circus. Tr. at 17:12-21, 114:17-24. Security guards were given strict instructions to keep patrons out of this restricted area. Id. at 111:3-8.
B. Day One, Thursday
On Thursday, August 16, the first day of the circus, the east staircase and east ramp leading to the north landing were both open for public use. Pl.’s Exh. 3, Clips 3, 5, 6. Upon reaching the landing, plaintiffs physically moved the railway barrier on the north landing to film and were told by security guards that they were not permitted in that area. Tr. at 14-15; Cuviello Dec. ¶ 7. Bolbol testified that she called upon Baldwin, who witnessed the incident, to rectify the misunderstanding; however, Baldwin was unresponsive. Tr. at 14-15; Pl.’s Exh. 3, Clip 1. In contrast, Ellis testified that after being called to the scene, he met with Baldwin, who requested that plaintiffs be given special permission to stand inside the movable barrier. Ellis Dec. ¶ 7.
Plaintiffs were subsequently granted special access to the restricted area, which allowed them to stand next to the railing at the very edge of the landing and overlook the tunnel entrance below.
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Id. Ellis testified that he communicated this policy to all on-duty security personnel over dispatch radio. Tr. at 104:22-25. However, it is unclear whether the policy was communicated to new guards on succeeding nights or whether the policy was even intended to remain for the duration of the four-day event. Id.
at 105, 199; Ellis Dec. ¶ 7. Notwithstanding this brief initial opposition from security, plaintiffs successfully videotaped the circus animals from within the restricted area at the railway on Thursday, August 16. Id. at 15:15-17, 61:9; Pl.’s Exh. 3, Clip 4.
C. Day Two, Friday
On Friday, August 17, the east staircase leading to the north landing was closed to the public; however, the east ramp was open for public use. Pl.’s Exh. 3, Clips 8, 9, 10. Plaintiffs testified that despite a barrier restricting access to the east staircase, which plaintiffs moved or security guards moved for them, plaintiffs used the east staircase on this day without issue. Cuviello Dec. ¶ 9; Tr. at 17:23-25. Plaintiffs had no trouble videotaping from within the restricted landing zone. Tr. at 18-19, 62.
D. Day Three, Saturday
On Saturday, August 18, the east staircase leading to the north landing was closed; however, the east ramp was open for public use. Pl.’s Exh. 3, Clip 11. Cuviello utilized the east ramp to access the north landing. Tr. at 81:14-16. Bolbol, however, elected to use the closed east staircase. Id. at 20-21; Pl.’s Exh. 3, Clips 11, 12. Security guards positioned at the bottom of the stairs instructed Bolbol to use the open east ramp. See Pl.’s Exh. 3, Clips 11, 12. Bolbol resisted until a female security guard arrived at the scene and told the guards to let Bolbol pass. Id. At the top of the stairs, Bolbol encountered a second barrier and again received instructions from the guards to make use of the open east ramp. Id. Bolbol’s associate, Cuviello, then physically moved the barrier such that Bolbol could pass through, but only after initiating a physical struggle with security personnel. Tr. at 22; Pl.’s Exh. 3, Clip 11. Bolbol then videotaped from within the restricted area for a short time, eventually descending via the east stairway, where she moved the barrier without issue. Tr. at 22-25.
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As Bolbol ascended the stairs a second time, security guards blocked the landing. Id.; Pl.’s Exh. 3, Clip 14. The guards reiterated instructions to use the east ramp. Pl.’s Exh. 3, Clips 14-17. The situation escalated into an argument, during which time plaintiffs continued to videotape the guards and, at one point, held their camera inches away from the faces of Sergeant Gonzales and other security personnel. Pl.’s Exh. 3, Clips 15-18, 21. The guards teased Cuviello regarding his personal hygiene and feet. Id. At one point, the guards commented that they “don’t make threats, only promises.” Id. One guard called Cuviello a “faggot” after Cuviello put his camera close to the guard’s face, interrogated him and told him to think of a good answer, but not to hurt himself. Id. After ten to fifteen minutes, Bolbol descended the stairs and walked up the east ramp to the north landing. Tr. at 27. Following this incident, Sergeant Gonzales allowed plaintiffs to use the east staircase.[4] Pl.’s Exh. 3, Clip 20; Tr. at 29. Plaintiffs encountered no further issues with their use of the east staircase for the remainder of the day, except for one instance when “Buzz” Golphin commented to Bolbol when she moved the staircase barrier, “where are you going, Deniz? You are just trying to make someone beat your ass.” Pl.’s Exh. 3, Clip 22; Tr. at 30-32.
E. Day Four, Sunday
On Sunday, August 19, the last day of the circus, the east staircase leading to the north landing was again closed; however, the east ramp was open for public use. Pl.’s Exh. 3, Clip 23. Despite the barriers, plaintiffs freely used the east staircase and filmed within the barricade on the north landing railway. Tr. at 33:3-7. Around nine in the evening, security guard Wetherbee told Cuviello that he was not allowed to stand within the restricted area. Pl.’s Exh. 3, Clip 24. Wetherbee proceeded to throw Cuviello’s bag of food out of the area and grab the pole upon which Cuviello’s camera was attached, shaking it before walking away. Id. No further incidents between plaintiffs and security personnel occurred on that day. Tr. at 71:1-25.
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F. Summary
In sum, plaintiffs could at all times reach the north landing via at least one of five access routes — the east ramp. Id.
at 36, 101-02, 177-78, 203. Plaintiffs were only denied access to the north landing via the east staircase at certain times on particular days. See Pl.’s Exh. 3, Clips 1-21. Security personnel never denied plaintiffs physical access to film from within the area guarded by the blockade at the north landing. Tr. at 33:8-19, 47-8, 74:9-13. However, security guards reproached plaintiffs numerous times for standing within this restricted zone. Id. at 84:19-25. Nevertheless, event personnel intervened almost immediately to confirm plaintiffs’ access. Id.
LEGAL STANDARD
The standard for finding a party in civil contempt is well settled: “the moving party has the burden of showing by clear and convincing evidence that the [nonmoving party] violated a specific and definite order of the court.” FTC v. AffordableMedia, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999) (quoting Stone v.City County of San Francisco, 968 F.2d 850, 856 n. 9 (9th Cir. 1992)).
If a party is held to be in civil contempt, the decision as to whether sanctions should be imposed lies within the sound discretion of the district court. See Jerry’s Famous Deli, Inc.v. Papanicolaou, 383 F.3d 998, 1004 (9th Cir. 2004).
DISCUSSION
Plaintiffs argue that defendants violated this court’s order by: (1) repeatedly harassing plaintiffs; (2) restricting access to the east staircase; and (3) restricting access to the railing on the north landing. Plaintiffs also make three additional allegations that: (1) defendants failed to effectively communicate the existence of the injunction and its terms to event staff; (2) defendants placed arbitrary and inconsistent restrictions on access to the railway and east staircase in order to subvert plaintiffs’ videotaping activity and appease Ringling Brothers Circus; (3) and Sergeant Gonzales disrespected plaintiffs by failing to enforce the injunction.
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A. Harassment
Harassment is defined as “words, conduct or action that . . . causes substantial emotional distress . . . and serves no legitimate purpose.” Black’s Law Dictionary 733 (8th ed. 2004).
Plaintiffs allege several incidents of harassment. The first involves the series of events on August 18th, during which defendants inconsistently and arbitrarily imposed restrictions on plaintiffs’ use of the east staircase. In arguing that such limitations constitute harassment, plaintiffs neglect the fact that at all times during the four-day event, they had at their disposal at least one viable, alternative route to the landing — the east ramp. See Tr. at 36, 101-02, 177-78. Therefore, any allegation that the closure of the east stairway caused emotional distress is unpersuasive.
Plaintiffs next allege that sporadic warnings from security personnel to leave the restricted area within the railway barrier on the north landing, coupled with Cuviello’s incident with security guard Wetherbee on August 19, constituted harassment. Although more compelling, this argument also fails to satisfy the threshold requirement of substantial emotional distress. Plaintiffs concede that they were never physically denied access to the restricted area. Id. at 74:9-13. Bolbol even described the resistance she encountered as “incidental” since plaintiffs were always able to film at or near the railway. Id. at 33:8-19. Moreover, the situation with Wetherbee lasted under a minute, resulted in no damage to Cuviello’s property, and concluded with Wetherbee’s retreat and no further disruptions. Id. at 75-76, 85; Pl.’s Exh. 3, Clips 1, 24. Thus, plaintiffs’ contention that defendants harassed plaintiffs while guarding the railway barrier is similarly unpersuasive.
Lastly, plaintiffs allege they were harassed when defendants insulted, threatened and intimidated plaintiffs during the August 18 incident on the east staircase. Indeed, security guards were extremely discourteous to plaintiffs when joking about plaintiffs’ personal hygiene and feet and calling Cuviello a “faggot.” See Pl.’s Exh. 3, Clip 21. The court strongly admonishes against this behavior. However, the evidence also demonstrates that plaintiffs provoked tension by holding their cameras only inches away from the faces of Sergeant Gonzales and security personnel while questioning and chastising them about their job, orders and wages. See id. (video clip depicting plaintiffs’ comments, “Are you getting time and a half, what is it $70 an hour? . . . Are you making a
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mockery of the court? . . . You have no respect for Judge Patel, is that right?”). Thus, plaintiffs cannot demonstrate that defendants caused plaintiffs substantial emotional distress for no legitimate purpose.
B. Access to East Stairway
Second, plaintiffs argue that defendants violated the injunction by restricting access to the east staircase. Whether such restrictions violate California’s Liberty of Speech Clause, as plaintiffs allege, is a question beyond the scope of the present motion. The issue here is whether blocking the stairs violated the terms of the injunction, not whether such restriction constitutes an illegal limitation on free speech. The injunction order gave plaintiffs a right to “enter the north ramp and videotape at the north ramp landing” and enjoined defendants from “preventing Plaintiffs from reaching the north ramp landing.” Injunction Order at 10-11. Further, although the order explicitly deemed the north ramp and north ramp landing to be public fora, it remained silent with respect to the east staircase.[5] See generally Injunction Order. The court finds no ambiguity in this language, especially in light of plaintiffs’ narrow request to “videotape from only the north ramp landing itself, and not the north ramp, and [to] use the north ramp merely to reach the landing.” Id. at 7 n. 5 (plaintiffs’ testimony at the preliminary injunction hearing). Here, defendants at no time prevented plaintiffs from reaching the north landing. Both Cuviello and Bolbol had ample opportunity to use the open east ramp at all times throughout the duration of the circus. See Tr. at 36, 101-02, 177-78. Consequently, plaintiffs cannot show with clear and convincing evidence that the defendants violated the injunction by restricting access to the east staircase.[6]
C. Access to North Landing
Third, plaintiffs argue that defendants violated the injunction by restricting access to the railway on the north landing. The injunction unambiguously gave plaintiffs a right “to stand at or near the railway of the north ramp landing in order to photograph or videotape.” See Injunction Order at 10-11. Plaintiffs concede that at no time during the four-day event did defendants physically deny plaintiffs access to the restricted area at or near the railway. Tr. at 33:8-19 (Bolbol
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testified that “[t]here were always people telling me I could not do or be where I was, but they were incidental because I was able to proceed”), 74:9-13 (Cuviello testified that he was never physically denied access to the north landing at or near the railway during the entire four-day circus). Plaintiffs’ testimony is sufficient to establish that defendants did not violate the injunction.[7]
D. Other Allegations
First, plaintiffs’ allegation that defendants did not take the injunction seriously is, in the absence of a violation, of no import with respect to the present motion. Nevertheless, the court recognizes that defendants’ lackluster effort to ensure that all event staff were made aware of the injunction largely exacerbated tensions between plaintiffs and security guards. Although Ellis testified that on August 16 he informed event staff over dispatch radio that plaintiffs had permission to stand within the railway barrier, Cuviello’s encounter with security guard Wetherbee three days later, on August 19, demonstrates that this information was not reiterated to guards on succeeding nights. Tr. at 104:22-25; see Pl.’s Exh. 3, Clip 24. Sergeant Gonzales further testified that no formal briefing process exists for officers hired to work at the Coliseum, and thus he was not aware of the injunction until the last day of the circus. Tr. at 147-51. Even the Captain of Security, “Buzz” Golphin, was not informed of the injunction until the first incident between plaintiffs and security personnel at the railway barrier on August 16. Id. at 215-16. Although the ignorance of event staff did not manifest itself in a violation of the injunction during the 2007 circus, it very well could have. Defendants would be well advised to institute procedures that inform personnel of such injunctions in the future.
Second, plaintiffs’ contention that limitations on access to the north landing and east staircase were arbitrary, capricious and ultimately promulgated to subvert plaintiffs’ videotaping and appease Ringling Brothers is also irrelevant given the court’s finding above. Although defendants’ behavior may well raise valid First Amendment concerns, such questions are outside the scope of the present motion. The court, however, notes that defendants’ policy regarding the stairs was neither uniformly implemented nor consistently enforced. On August 16, the first day of the circus, the east stairway was open for public use, yet on all subsequent days the same stairway was closed. See Pl.’s
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Exh. 3, Clips 3, 5, 6, 8-11. Security personnel sporadically barred plaintiffs from accessing the east stairway, yet on other occasions granted permission. See Pl.’s Exh. 3, Clips 11, 12 (security guards denying Bolbol access to the stairs), 20, 22 (Sergeant Gonzales allowing plaintiffs to access the stairs). Further, defendants’ purported justification for closing the east staircase, the safety of patrons and animals, is suspect in light of this court’s prior finding that such concerns were speculative. See Injunction Order at 7:4-5.
Finally, plaintiffs’ allegation that Sergeant Gonzalez disrespected plaintiffs by failing to enforce the injunction is moot in light of a determination that defendants did not violate the August 14 injunction.
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for sanctions is DENIED.
IT IS SO ORDERED.