Salvador Reza v. Russell Pearce

In this § 1983 action, Salvador Reza alleges that Arizona

State Senator Russell Pearce violated his constitutional rights

when he ordered Reza removed, and barred, from the Arizona

Senate building (the Building) at the state capital. Reza

contends that Senator Pearce targeted him because of his

public criticism of the senator, and because of Reza’s

Mexican heritage. Senator Pearce responds that he was

justified in barring Reza from the Building because Reza

disrupted Senate proceedings, and because he believed Reza

would interrupt Senate proceedings in the future. The district

court granted summary judgment to Senator Pearce because

it concluded that Reza had not alleged a First Amendment

violation, and that, therefore, Senator Pearce was entitled to

qualified immunity.

Reza also alleges that officers Jeff Trapp and John Burton

violated his rights under the First and Fourth Amendments by

preventing Reza from entering the Building, and ultimately

arresting him. Reza challenges the district court’s order

granting Rule 12(b)(6) motions to dismiss his claims against

Trapp and Burton on qualified immunity grounds.

Finally, Reza challenges a protective order granted by the

district court that prevented him from obtaining evidence

concerning Senator Pearce’s relationship with J.T. Ready, a

white supremacist leader.

We reverse the district court’s decision to grant summary

judgment to Senator Pearce, and remand for further

proceedings consistent with this opinion. Based on our

REZA V. PEARCE 5

review of the record, we find several disputed issues of

material fact that affect our determination of whether Senator

Pearce violated Reza’s First Amendment rights. However,

when we resolve factual disputes in favor of Reza’s version

of events, as required on a motion for summary judgment, we

conclude that Senator Pearce’s alleged conduct violated our

circuit’s clearly established First Amendment law. We affirm

the district court’s rulings regarding officers Trapp and

Burton, and its protective order.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

A. The Alleged Disruption of the Arizona Senate

Debate

Salvador Reza is a member of Tonatierra, a community

development organization that seeks to protect the rights of

migrant workers and their families. On February 22, 2011,

Reza attended a legislative hearing at the Building concerning

S.B. 1070, a state immigration law.

The hearing on S.B. 1070 attracted significant public

attention. Because of the number of people already in the

Building when Reza and other supporters of Tonatierra

arrived, he and those supporters were unable to sit in the

room where the Senate hearing was held. Instead, Reza sat in

an overflow room, where people could view a broadcast of

the Senate hearing proceedings. Both opponents and

supporters of the proposed legislation applauded and booed

in the overflow room during the course of the hearing.

6 REZA V. PEARCE

Senator Pearce claims that, near the end of the day’s

proceedings, noise from the overflow room began to interfere

with legislative debate. At this time, Officer John Burton

approached Reza and asked him to try to silence the audience.

Reza refused to do so and, when the officer said he might

have to detain some protestors if they kept loudly clapping,

Reza allegedly said “do what you have to do.” In his

deposition, Officer Burton states that Reza was

confrontational and challenged the officer by saying, “Go

ahead, throw me out.”

Around 10:00 pm, Sergeant-at-Arms Joe Kubacki entered

the overflow room and told the crowd to stop applauding,

because the noise was violating the Senate’s rules of

decorum. In his deposition, he states that some members of

the audience, including Reza, started applauding even louder.

Kubacki reported this incident to Senator Pearce. Senator

Pearce was the president of the Senate at that time, and had

authority to maintain decorum for the Senate. In his affidavit,

Senator Pearce claims that, in the aftermath of a recent

shooting at an event held by Congresswoman Gabrielle

Giffords, public officials were “on edge” and “nervous,” and

were particularly concerned about potential violence at

protests. Earlier that day, police had arrested four protestors

of S.B. 1070 at a press conference held by State Senator

Krysten Sinema. When Senator Pearce asked Kubacki how to

handle the protestors in the overflow room, Kubacki

apparently advised that, since the legislative hearing appeared

to be concluding, it would be better to try to limit

disturbances in the short term and not arrest any protestors or

attempt to remove them from the Building.

REZA V. PEARCE 7

Senator Steve Gallardo, who attended the S.B. 1070

hearing, submitted an affidavit stating that: “I never saw Mr.

Reza engage in any disruptive behavior at the Arizona State

Senate on February 22, 2011 or at any other time . . . Nor did

I ever observe anyone either disrupt or interrupt the public

hearing before the Appropriations Committee on February 22,

2011.” Others attending the hearing have supported Senator

Gallardo’s affidavit. For instance, Jason Odhner, an

individual who was seated in the overflow room during the

S.B. 1070 hearing, testified that, “[d]uring the entire time that

I was at the Senate building on that occasion, I never saw Mr.

Reza engage in any type of disruptive or disrespectful

behavior.”

B. Senator Pearce’s Ban of Salvador Reza

After the S.B. 1070 hearing concluded, Senator Pearce

approached Officer Jeff Trapp and asked him to identify

those who had been protesting loudly in the overflow room.

Senator Pearce directed Officer Trapp to deny entrance into

the Building to those he identified, due to their disorderly and

disruptive behavior. The officers identified Reza as one of the

individuals who had disrupted the Senate hearing, and barred

Reza from entering the Building.

C. Reza’s Arrest

On February 24, 2011, Reza tried to enter the Building for

the purpose of meeting with Senator Gallardo to discuss

obtaining a permit for future protests. At that time, Officers

Trapp and Burton told Reza that he was not permitted inside

the Building because of his disorderly and disruptive behavior

during the S.B. 1070 hearing. When Reza nonetheless tried to

enter the Building, the two officers arrested Reza and took

8 REZA V. PEARCE

him to a holding room in the Building. Reza was eventually

arrested for trespassing and transferred to the Maricopa

County Jail, where he remained for approximately five hours.

D. Press Release and New Rules Governing Senate

On February 25, 2011, Senator Pearce issued a press

release concerning the February 22 protest and the purported

disruption he claimed had occurred. Senator Pearce’s press

release discussed the tense environment in Arizona after a

fatal shooting at an event hosted by Representative Giffords,

and the protest at the speech by Senator Sinema. On March

14, 2011, Senator Pearce issued new rules concerning public

interruptions of proceedings in the Arizona Senate. Under the

new rules, first time violators would be excluded from the

Building for two weeks; subsequent violators would be

excluded for 60 days.

II. Prior Proceedings

On June 13, 2011, Reza filed this § 1983 action, alleging

that Senator Pearce violated his First Amendment rights by

barring him from the Building generally, and specifically by

preventing him from entering the Building to attend a

meeting with Senator Gallardo on February 24, 2011. Reza

alleges that Senator Pearce targeted him because of his

Mexican ancestry and his public criticism of Senator Pearce.

Reza also filed separate § 1983 actions against Officers Trapp

and Burton for arresting him, and preventing him from

entering the Building on February 24, 2011.

The district court granted summary judgment to Senator

Pearce, concluding that the senator was protected by qualified

immunity. The district court also granted motions to dismiss

REZA V. PEARCE 9

filed by Officers Trapp and John Burton. In addition, the

district court granted a protective order preventing Reza from

obtaining evidence concerning Senator Pearce’s relationship

with J.T. Ready, a white supremacist leader.

This timely appeal followed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to

28 U.S.C. § 1291. We review de novo the district court’s

decision to grant summary judgment to Senator Pearce on

qualified immunity grounds, considering disputed material

facts in the light most favorable to Reza, the non-moving

party. See Garcia v. Cnty. Of Merced, 639 F.3d 1206, 1208

(9th Cir. 2011). We also review de novo the district court’s

decision to dismiss the claims against Officers Trapp and

Burton for failure to state a claim on which relief can be

granted. See Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir.

2010).

DISCUSSION

I. Senator Pearce’s Qualified Immunity

Reza contends that Senator Pearce violated his First

Amendment rights when he barred him from entering the

Building. The district court granted summary judgment to

Senator Pearce, concluding that because Reza did not allege

a First Amendment violation, Senator Pearce was entitled to

qualified immunity.

We reverse the district court’s decision and remand for

further proceedings consistent with this opinion. To overcome

10 REZA V. PEARCE

Senator Pearce’s qualified immunity defense, Reza must

establish both that Senator Pearce violated his First

Amendment rights, and that this violation was of a “clearly

established statutory or constitutional right[] of which a

reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 231 (2009). We find several material issues of

disputed fact that control whether there was a First

Amendment violation. Moreover, when we resolve factual

disputes in favor of Reza’s version of events, we conclude

that Senator Pearce’s conduct violated clearly established

First Amendment law. Therefore, the district court erred in

granting summary judgment to Senator Pearce.

A. Was There A First Amendment Violation?

1. Forum

We begin by determining what kind of forum the

Building is because the kind and scope of restrictions the

government may place on speech depends on where the

speech occurs. See White v. City of Norwalk, 900 F.2d 1421,

1425 (9th Cir. 1990). Federal courts have generally

recognized three categories of public fora: (1) traditional

public fora; (2) designated public fora; and (3) limited public

fora. Traditional public fora are areas historically used by the

public for assembly, such as sidewalks and parks. See Perry

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44

(1983). Designated public fora are those where “the

government intentionally opens a nontraditional forum for

public discourse.” DiLoreto v. Downey Unified Sch. Dist. Bd.

Of Educ., 196 F.3d 958, 964 (9th Cir. 1999). Limited public

fora are public property “limited to use by certain groups or

dedicated solely to the discussion of certain subjects.”

REZA V. PEARCE 11

Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470

(2010).

Although Reza contends that the Building is a public

forum, it is more specifically a limited public forum. We have

held that city council meetings, where the public has the

opportunity to address officers of a local government or local

governmental agency, are limited public fora. White, 900 F.2d

at 1425. Much like a city council meeting, which is a

“governmental process with a governmental purpose,” id., the

hearing on S.B. 1070 involved proceedings concerning the

possible enactment of a public law by a governmental

institution.

The fact that Reza was only a member of the audience,

and not an individual addressing the Senate hearing, has no

bearing on the nature of the forum. Put another way, unlike

the plaintiffs in White, who were addressing the limited

forum as part of the city council proceedings themselves,

Reza was not testifying before the Senate. The disputed

speech involved Reza’s reactions to proceedings being held

in the Building. At bottom, however, “[a] limited public

forum is a limited public forum.” Norse v. City of Santa Cruz,

629 F.3d 966, 976 (9th Cir. 2010). Restrictions on the speech

of spectators in a limited public forum are subject to the same

constitutional rules that apply to those addressing the

chamber itself. Id.

2. Legal Standard in Limited Public Forum

We have recognized that, in order to safeguard the

purpose of a limited public forum, the government may

restrict speech in that forum. See White, 900 F.2d at 1426. “In

addition to time, place, and manner regulations, the state may

12 REZA V. PEARCE

reserve the forum for its intended purposes, communicative

or otherwise, as long as the regulation on speech is reasonable

and not an effort to suppress expression merely because

public officials oppose the speaker’s view.” Perry Educ.

Ass’n, 460 U.S. at 46. See also Kindt v. Santa Monica Rent

Control Bd., 67 F.3d 266, 271 (9th Cir. 1995) (“The fact

remains that limitations on speech at those meetings must be

reasonable and viewpoint neutral, but that is all they need to

be.”).

Although we conclude below that Senator Pearce’s

restrictions on Reza, which attempted to preserve the ability

of the Senate to hold uninterrupted legislative hearings, were

viewpoint neutral, there are material issues of disputed fact

concerning whether Reza actually disrupted the proceedings,

and whether Senator Pearce had legitimate concerns that, if

Reza were allowed into the Building in the future, he would

interrupt legislative debate. These factual issues affect our

analysis concerning the reasonableness of the restrictions

placed on Reza.

3. Viewpoint Neutrality

Reza contends that Senator Pearce targeted him because

of his Mexican ethnicity, and because he had strongly

articulated his opposition to S.B. 1070. The record in this

case does not support these contentions. So far as revealed by

the record, Senator Pearce simply ordered state Senate

officers to identify people who were being loud in the

overflow room. After the officers designated Reza as one of

these individuals, they obtained public domain photographs

of Reza, which allowed them to identify him in the future,

and bar him from the Building. Senator Pearce subsequently

issued a press release stating that individuals who had been

REZA V. PEARCE 13

identified as disrupting Senate proceedings would not be

allowed inside the Building for a period of two weeks, and in

case of multiple disruptions, for a period of 60 days.

It may be that opponents of S.B. 1070 outnumbered

supporters of S.B. 1070 in the overflow room, and that the

ban on individuals who had allegedly disrupted the Senate

hearing disproportionately impacted opponents of the bill.

Nevertheless, the record indicates that Senator Pearce’s ban

on Reza resulted from a neutral policy that was implemented

because some in the Senate hearing room claimed that they

had been disturbed by noise emanating from the overflow

room.

4. Disputed Facts As To Reasonableness

A restriction on expressive conduct in a limited forum

must be “reasonable in light of the purpose served by the

forum . . . .” DiLoreto v. Downey Unified Sch. Dist. Bd. of

Educ., 196 F.3d 958, 965 (9th Cir. 1999). See also Preminger

v. Peake, 552 F.3d 757, 765 (9th Cir. 2008). We permit

restrictions to maintain decorum and order in a proceeding.

See Kindt, 67 F.3d at 271.

There is a factual dispute as to whether Reza’s speech in

the overflow room actually disrupted the hearing regarding

S.B. 1070, and whether Senator Pearce was legitimately

concerned that, if Reza were allowed into the Building in the

future, he would interrupt legislative debate. Some claim that

Reza’s actions interfered with the Senate hearing on S.B.

1070, which prevented the Senate from finishing its business.

For example, Officer Burton testified that he asked Reza to

keep his voice down: “I spoke to Mr. Reza and instructed him

that it was getting loud, that I didn’t want the senators to

14 REZA V. PEARCE

become upset and ask[] to have people thrown out. Mr. Reza

told me, ‘Go ahead[;] throw me out.” Others, including

Senator Gallardo, claim that Reza did not do anything to

disrupt the Senate hearing. They contend that Reza only

applauded loudly.

Senator Pearce was entitled to rely on information

provided to him by Senate officers that identified Reza as an

individual who was disrupting debate. However, at least one

officer clearly told the senator that there was no reason to

remove any audience members from the Senate building,

Reza included, during the Senate debate. Most importantly,

it is uncontroverted that Senate proceedings continued for the

duration of the S.B. 1070 protest, a fact that the senator knew

firsthand. This meant that any purported protest never

actually disrupted Senate proceedings. It was only two days

after the hearing concluded that Senator Pearce ordered Reza

barred from the Building.

In a limited public forum, our inquiry into the

reasonableness of restrictions takes into account whether the

restrictions imposed leave open alternative channels of

communication. In Kindt, we considered rules governing the

manner in which members of the public could address a rent

control board during a hearing in a limited public forum.

67 F.3d at 271. We determined that there was no First

Amendment violation because although the plaintiff was

required to comply with the rules of the rent control board,

the plaintiff still retained the ability to express himself. Id. In

the present case, however, Senator Pearce completely barred

Reza from entering the Building, which ultimately prevented

Reza from meeting with an elected senator. Senator Pearce’s

solution, imposing a complete bar on Reza’s entry into the

Building, exceeds the bounds of reasonableness as a response

REZA V. PEARCE 15

to a single act of disruption, for the reasons explained in the

next section. Senator Pearce initially imposed an indefinite

bar on Reza and later promulgated regulations that limited the

bar on disruptive individuals to two weeks for first time

offenders, although it is unclear if these regulations applied

to Reza.

As president of the Senate, Senator Pearce did have the

power to maintain order and decorum in the Senate

proceeding. Even if we acknowledge the senator’s authority

to bar disruptive individuals from Senate debates, we still

encounter factual disputes concerning whether Reza

interrupted Senate proceedings, and whether Senator Pearce

was justified in determining that Reza would interfere with

Senate proceedings in the future. We have held that “[w]hen

a respondent to a motion for summary judgment submits

proper affidavits by individuals with personal knowledge and

other cognizable and significantly probative evidence, such

that a reasonable juror drawing all inferences in favor of the

respondent could return a verdict in the respondent’s favor,

the judge must treat that fact as genuinely at issue.” United

States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999).

The affidavits and testimony submitted by Reza raise triable

issues of material fact. We thus conclude that it was error for

the district court to grant summary judgment to Senator

Pearce on the ground that Reza had not shown a First

Amendment violation.

B. Was the First Amendment Violation Clearly

Established?

We further conclude that, based on the second prong of

the qualified immunity test, Senator Pearce’s actions violated

Reza’s clearly established First Amendment rights. See

16 REZA V. PEARCE

Pearson, 555 U.S. at 231; Eng v. Cooley, 552 F.3d 1062,

1075 (9th Cir. 2009). In reaching this conclusion, we review

evidence in the record in the light most favorable to Reza, the

non-moving party. See Foster v. Runnels, 554 F.3d 807, 811

(9th Cir. 2009).

1. Meaning of “Clearly Established”

A right is clearly established if it was “sufficiently clear

[at the time of the conduct at issue] that every reasonable

official would have understood that what he is doing violates

that right.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015).

See also Anderson v. Creighton, 483 U.S. 635, 640 (1987).

“If the law does not ‘put the officer on notice that his conduct

would be clearly unlawful, summary judgment based on

qualified immunity is appropriate.’” Foster, 554 F.3d at 815

(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).

We note, however, that the Supreme Court does “not

require a case directly on point.” Ashcroft v. al-Kidd, 131 S.

Ct. 2074, 2083 (2011). Instead, existing precedent must have

placed the constitutional question beyond debate. Id.

“[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Hope

v. Pelzer, 536 U.S. 730, 741 (2002). Ultimately, the “clearly

established” prong of the qualified immunity test shows

deference towards the actions of government officials, but

does not shield individuals who are “plainly incompetent or

those who knowingly violate the law.” Taylor, 135 S. Ct. at

2044.

REZA V. PEARCE 17

2. Ninth Circuit Law at the Time of Senator

Pearce’s Conduct

On February 22, 2011, the date of the S.B. 1070 hearing,

clearly established law held that an individual could protest

in a limited public forum, but that the government could

restrict the individual’s speech to safeguard the purpose of the

forum, as long as the restrictions were reasonable and

viewpoint neutral. See Norse, 629 F.3d at 975. Our circuit’s

case law also unambiguously held that a government official

could remove an individual from a limited public forum if the

individual had actually disrupted proceedings. Importantly,

our case law on the removal of disruptive individuals only

extended to single legislative hearings. No cases, in the Ninth

Circuit or otherwise, empowered a government official to

completely ban an individual from a government building

based on a single disruption of a hearing.

In White, for example, we considered a facial challenge

to a city ordinance that authorized a city council to remove

individuals from hearings if they made “personal,

impertinent, slanderous or profane remarks.” 900 F.2d at

1424. We upheld the city ordinance, but only because it

authorized removal when an attendee “disrupts, disturbs or

otherwise impedes the orderly conduct of the Council

meeting.” Id. at 1426.

In Kindt, we analyzed a First Amendment challenge

regarding an individual’s multiple removals from a rent

control board’s meetings. 67 F.3d at 268. We concluded that

the board’s ejection of the individual had been valid under the

First Amendment. The individual had actually disrupted rent

control meetings by speaking out of order and yelling at the

board during proceedings. Id. at 268–69.

18 REZA V. PEARCE

Finally, in Norse, the Santa Cruz City Council removed

Robert Norse from a council meeting and arrested him for

giving a silent Nazi salute while the meeting was ongoing.

629 F.3d at 969–70. The city contended that Norse’s protest

was a “disruption.” An en banc panel of our court disagreed.

We held that “[a]ctual disruption means actual disruption. It

does not mean constructive disruption, technical disruption,

virtual disruption, nunc pro tunc disruption, or imaginary

disruption.” Id. at 976. Norse reaffirms the fundamental

principle that the government can remove an individual from

a limited public forum, but that the individual must actually

disrupt the proceedings in the limited forum.

3. Factors Considered in the Present Case

In the case before us, the senator never ordered that Reza

be removed from the overflow room during the Senate

hearing on S.B. 1070. At least one officer had advised the

senator that there was no reason to remove any audience

members from the overflow room or the Building. Senate

proceedings continued uninterrupted during the alleged

protest. Despite Senator Pearce having knowledge of all these

facts, two days after the S.B. 1070 hearing, he decided to ban

Reza from the Building altogether. The effect of the ban was

thus to exclude Reza not simply from all future hearings

related to S.B. 1070, but from all future hearings on any

subject. In addition, because the Building housed the

legislative offices of all members of the Arizona Senate, the

ban precluded Reza from visiting his elected representatives

to urge legislative action on any subject. Indeed, the ban

ultimately resulted in Reza’s arrest when he attempted to visit

a state senator with whom he had arranged a meeting. Even

if the senator had ordered Reza removed for the duration of

the S.B. 1070 hearing, this would have already contravened

REZA V. PEARCE 19

Ninth Circuit law that only permits such removal in cases of

an actual disruption. Senator Pearce went a step further,

imposing a ban on Reza that covered the entire Building and

initially extended for an indefinite period. Although Senator

Pearce subsequently issued a rule that limited the general ban

on disruptive individuals to two weeks for first time

offenders, it is unclear if this rule applied to Reza.

In reaching the conclusion that Senator Pearce violated

clearly established First Amendment law, we must be careful

not to define “clearly established” at a “high level of

generality.” City & Cnty. of San Francisco v. Sheehan, 135 S.

Ct. 1765, 1775–76 (2015). Senator Pearce rightly contends

that, at the time of his actions, neither the Supreme Court, nor

our court, had squarely addressed the specific types of

restrictions allowed in a limited public fora, in light of public

safety concerns. “[T]he interest in keeping a government

building accessible and safe is both legitimate and

significant.” Sammartano v. First Judicial Dist. Court,

303 F.3d 959, 973 (9th Cir. 2002), abrogated on other

grounds by Winter v. Nat. Res. Def. Council., 129 S. Ct. 365

(2008).

We are not persuaded by the senator’s public safety

rationale for his restrictions on Reza. At the time of the

challenged conduct, our First Amendment doctrine had

clearly held that safety concerns of the type Senator Pearce

raises here must be supported by the record. See id. Pursuant

to this case law, we review the record to determine if it

“show[s] that the asserted risks were real.” Id. at 967. We also

determine whether the First Amendment restrictions at issue

serve the government’s public safety interest, although we do

not apply a least restrictive means test. “The Government’s

decision to restrict access to a nonpublic forum need only be

20 REZA V. PEARCE

reasonable; it need not be the most reasonable or the only

reasonable limitation.” Cornelius v. NAACP Legal Def. And

Educ. Fund Inc., 473 U.S. 788, 808 (1985).

Here, the senator did not submit sufficient evidence

showing that Reza posed a threat to the public safety. Instead,

we are required to infer that Reza was a threat based only on

the tense environment that existed in Arizona at the time of

the protest. That is not enough, especially given that Senator

Pearce took an extreme action, barring Reza from the Senate

building completely. Additionally, it is unclear how the risk

that Reza posed justified a ban that initially extended for an

indefinite period. At the very least, Senator Pearce had

several less restrictive alternatives open to him, including

barring Reza from certain rooms in the Building or for a

shorter period of time.

We thus conclude that Senator Pearce violated Reza’s

clearly established First Amendment rights and that the

district court erred by granting summary judgment to Senator

Pearce.

II. Officers’ Qualified Immunity

Reza also contends that Officers Jeff Trapp and John

Burton violated his constitutional rights by preventing him

from entering the Building, and by subsequently arresting

him. The officers respond that they are entitled to qualified

immunity, because they were complying with a facially-valid

order from Senator Pearce to exclude Reza, and because they

had probable cause to arrest Reza.

We hold that the district court did not err in granting the

officers’ motion to dismiss on qualified immunity grounds,

REZA V. PEARCE 21

because they arrested Reza for criminal trespass pursuant to

a facially-valid order issued by Senator Pearce.

In Arizona, a person commits criminal trespass in the

third degree by “[k]nowingly entering or remaining

unlawfully on any real property after a reasonable request to

leave by the owner or any other person having lawful control

over such property, or reasonable notice prohibiting entry.”

A.R.S. 13-1502(A)(1). An officer is “entitled to qualified

immunity on a false arrest claim if a reasonable officer in his

position could have believed that probable cause existed.”

Norse, 629 F.3d at 978.

Senator Pearce issued the order to exclude Reza pursuant

to his authority as President of the State Senate. Rule 2(B) of

the Arizona Senate Rules states that the Senate President

“shall have control of the Senate Chamber . . . all other parts

of the Senate wing and all other areas and buildings used

exclusively by the Senate.” Rule 2(C) states that the President

“shall preserve and maintain order and decorum.”

Thus, Senator Pearce’s order was facially valid. Perhaps

the substantive legitimacy of Senator Pearce’s order could be

challenged, but not in a lawsuit against the officers. “[T]he

existence of a statute or ordinance authorizing particular

conduct is a factor which militates in favor of the conclusion

that a reasonable official would find that conduct

constitutional.” Grossman v. City of Portland, 33 F.3d 1200,

1209 (9th Cir. 1994). Furthermore, Reza concedes that he

continued his attempt to walk into the Building to meet with

Senator Gallardo, after being told by the officers that he could

not enter the Building. Under the circumstances, Reza’s

attempted entry was an act of trespass under Arizona law, and

22 REZA V. PEARCE

the officers had probable cause to arrest Reza based on

Senator Pearce’s facially-valid order.

III. Questions Concerning J.T. Ready

Reza also claims that the district court erred in granting

Senator Pearce’s Motion for Protective Order, which

prevented Reza from questioning Senator Pearce about his

acquaintance with J.T. Ready, a purported white supremacist.

Discovery normally must be “relevant to any party’s

claim or defense.” Fed. R. Civ. P. 26(b)(1). Even if discovery

is relevant, however, a court may issue a protective order “to

protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense.” Fed. R. Civ. P.

26(c). We review the district court’s decision to enter the

protective order for an abuse of discretion. See Preminger,

552 F.3d at 768 n.10.

It is unclear from the record whether information relating

to J.T. Ready would have led to the discovery of admissible

evidence. The only relevant issue related to Senator Pearce’s

alleged friendship with J.T. Ready is the senator’s purported

discrimination against Reza based on Reza’s Mexican

ancestry. However, Reza had already discovered public

information concerning the purported friendship between

Senator Pearce and J.T. Ready. This public information

diminishes the probative value of additional questions

concerning the alleged friendship. The district court

concluded that “[i]f defendant associated with a Neo-Nazi

murderer, details about this relationship may make it slightly

more likely that defendant himself was racist.” Nevertheless,

the court determined that “it is highly likely that the evidence

would be excluded under Federal Rule of Evidence 403.” In

REZA V. PEARCE 23

light of the discretion entrusted to district judges in applying

Federal Rule of Evidence 403, it is clear to us that the district

court did not abuse its discretion in granting the protective

order.

IV. Conclusion

We reverse the district court’s decision to grant summary

judgment to Senator Pearce and remand for further

proceedings consistent with this opinion. We affirm the

district court’s rulings regarding officers Trapp and Burton,

and its protective order.

Each party shall bear its own costs on appeal.

REVERSED AND REMANDED IN PART.

AFFIRMED IN PART.

WALLACE, Circuit Judge, concurring in part and dissenting

in part:

I dissent from Part I of the majority opinion, which

incorrectly holds that Senator Pearce “violated Reza’s clearly

established First Amendment rights.” The Supreme Court has

repeatedly cautioned courts—and our circuit in

particular—“not [to] define clearly established law at a high

level of generality.” Ashcroft v. Al-Kidd, 131 S. Ct. 2074,

2084 (2011); see also City & Cnty. of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1778 (2015) (reversing our

circuit’s decision on the basis that the officers were entitled

to qualified immunity); Lopez v. Smith, 135 S. Ct. 1, 6 (2014)

(per curiam) (reversing our circuit’s decision and cautioning

24 REZA V. PEARCE

us against “framing our precedents at such a high level of

generality” (internal quotation marks omitted)). Rather than

correct the course, as directed by the Supreme Court, in this

case, the majority continues in the wrong direction and I

therefore dissent.

To recover under 42 U.S.C. § 1983 Reza must show

(1) that Senator Pearce violated one of Reza’s statutory or

constitutional rights, and (2) that the right “was clearly

established at the time of the challenged conduct.” Plumhoff,

134 S. Ct. 2012, 2023 (2012) (internal quotation marks

omitted). As the Supreme Court recently explained, the

“clearly established” standard is not easily overcome: “An

officer ‘cannot be said to have violated a clearly established

right unless the right’s contours were sufficiently definite that

any reasonable official in [his] shoes would have understood

that he was violating it,’ meaning that ‘existing precedent . . .

placed the statutory or constitutional question beyond

debate.’” Sheehan, 135 S. Ct. at 1774, quoting Ashcroft,

131 S. Ct. at 2083. Qualified immunity, “[w]hen properly

applied, . . . protects all but the plainly incompetent or those

who knowingly violate the law.” Ashcroft, 131 S. Ct. at 2085

(internal quotation marks omitted).

As the majority recognizes, the Senate Building is a

limited public forum. Therefore, the government could

restrict speech in the building so long as any “regulation on

speech [was] reasonable and not an effort to suppress

expression merely because public officials oppose the

speaker’s view.” Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 46 (1983). The majority

correctly concludes that “Senator Pearce’s ban on Reza

resulted from a neutral policy.” But it fails to recognize the

reasonableness of Senator Pearce’s actions given the

REZA V. PEARCE 25

circumstances he faced. As the majority concedes, “Senator

Pearce was entitled to rely on information provided to him by

Senate officers that identified Reza as an individual who was

disrupting debate.” And although at least one officer told

Senator Pearce that there was no reason to immediately

remove anyone from the building (perhaps because doing so

would have emboldened the disruptors and created an even

greater disturbance), that does not change the fact that

multiple other officers told the senator that Reza caused an

actual disturbance. Moreover, Senator Pearce's order was a

response to the tense atmosphere created by the recent

shooting in Tucson in which a federal judge was murdered,

and the fact that state senators expressed fear for their safety

as a result of a disruption that morning at one senator’s press

conference. The majority’s discussion of reasonableness

makes no mention of any of these surrounding circumstances.

This omission ignores our case law requiring that we judge

reasonableness “in light of the purpose of the forum and all

of the surrounding circumstances.” Premigner v. Peake,

552 F.3d 757, 765 (9th Cir. 2008) (internal quotation marks

omitted) (emphasis added). In my view, in light of the

purpose of the forum, to conduct legislative business, the

surrounding circumstances, and the information the senator

received from his officers, the senator’s ban (subsequently

limited to two weeks) on alleged disruptors was reasonable

and therefore did not violate the First Amendment.

But we need not even reach the question of whether

Senator Pearce actually violated First Amendment law in this

case by relying, as he could, on reports given to him by

officers assigned to keep order, because there is no doubt that

the senator did not violate “clearly established” law at the

time of the challenged conduct. At that time, not a single

Supreme Court decision clearly established the right Reza

26 REZA V. PEARCE

now asserts. Implicitly acknowledging this fact, the majority

focuses solely on Ninth Circuit law. After reviewing our law

at the time, the majority concludes that “[n]o cases, in the

Ninth Circuit or otherwise, empowered a government official

to completely ban an individual from a government building

based on a single disruption of a hearing.” But this answers

the wrong question and is ultimately a red herring. The fact

that no cases affirmatively permitted an official to ban an

individual from a government building based on a single

disruption (the majority’s conclusion) is irrelevant for

purposes of qualified immunity. Instead, the relevant question

is whether any case expressly prohibited an official from

banning an individual from a government building for a

single disruption. None of our cases at the time of the hearing

in question answered that question.

In White, we upheld a city ordinance that allowed removal

of individuals from a city council hearing if they made

“personal, impertinent, slanderous or profane remarks.” White

v. City of Norwalk, 900 F.2d 1421, 1424 (9th Cir. 1990). The

case says nothing regarding whether a government official

can bar a person from future hearings for causing an actual

disruption. We reinforced this rule in Kindt. There we upheld

a rent control board’s decision to remove an individual from

a meeting because of an actual disruption. Kindt v. Santa

Monica Rent Control Bd., 67 F.3d 266, 272–73 (9th Cir.

1995). Again, the case says nothing about banning a person

from future meetings where they caused an actual disruption.

Last, in Norse, we held that rules of decorum are not facially

overbroad if they limit the ability of government officers to

eject individuals for actually disturbing a meeting. Norse v.

City of Santa Cruz, 629 F.3d 966, 976 (9th Cir. 2010). Here

again, the case says nothing about whether an official can ban

REZA V. PEARCE 27

an individual from future meetings as a result of an actual

disruption.

Maybe Senator Pearce made a mistake in banning Reza

from the senate building. Perhaps the First Amendment

should prohibit such a ban. But neither view should make any

difference in this case because at the time of the challenged

conduct Senator Pearce did not violate any “clearly

established” right. On this basis, I would hold that Senator

Pearce is entitled to qualified immunity and would affirm the

district court’s summary judgment in his favor. The

majority’s holding to the contrary continues our unfortunate

ignoring of the Supreme Court’s repeated caution to avoid

defining clearly established law at a high level of generality.”

Ashcroft, 131 S. Ct. at 2084. I therefore dissent from the

holding reversing the district court’s summary judgment in

favor of Senator Pearce but concur in the remainder of the

majority opinion.

Reversed in part and affirmed in part.