Tucson Answering Brief

Case: 17-16640, 02/02/2018, ID: 10749473, DktEntry: 13, Page 1 of 33
17-16640
________________________
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
________________________
ROY WARDEN,
Plaintiff-Appellant
v.
RICHARD MIRANDA, ET AL
Defendants-Appellees.
_______________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA
CIVIL CASE NO. 4:14-cv-02050-DCB
(Honorable David C. Bury)
_______________________________
CITY DEFENDANTS’ ANSWERING BRIEF

_______________________________
Baird S. Greene
Principal Assistant City Attorney for
Michael G. Rankin
City Attorney
P.O. Box 27210
Tucson, AZ 85726-7210
Telephone: (520) 791-4221
Facsimile: (520) 791-4188
Attorney for Defendants-Appellees
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii

INTRODUCTION .......................................................................................................................... 1
ISSUES PRESENTED.................................................................................................................... 3
STATEMENT OF THE CASE ....................................................................................................... 3
A. The Undisputed Facts ....................................................................................................... 3
B. This Lawsuit ................................................................................................................... 10
SUMMARY OF ARGUMENT .................................................................................................... 13
ARGUMENT ................................................................................................................................ 14
1. The Granting of the City Defendants’ Motion for Summary Judgment. .............................. 14
A.The District Court properly distinguished Gathright and relied upon persuasive authority
from the United States Supreme Court and the Sixth Circuit in reaching its ruling granting
the Motion for Summary Judgment. ..................................................................................... 14
(1) No genuine issue of material fact exists here, meaning Gathright does not apply. ........ 14
(2) Warden’s First Amendment claim fails. ......................................................................... 16
(a) Hurley applies as City Defendants could not force a political rally to include
discordant speakers, depriving the rally of its own rights to freedom of speech. ....... 16
(b) Limited public forum analysis. .................................................................................. 17
(c) Traditional public forum analysis. .............................................................................. 18
(3) Warden waived a review of the dismissal of his retaliation and conspiracy claims. ...... 20
2. The Scheduling Conference. ................................................................................................. 21
A.Warden’s challenge to the scheduling conference is not properly subject to appeal due to
scope and waiver, and Warden was not aggrieved by the lack of the District Court Judge’s
personal presence or the fact that the conference was not on the record. ............................. 22
CONCLUSION ............................................................................................................................. 25
STATEMENT OF RELATED CASES ........................................................................................ 26
CERTIFICATE OF SERVICE ..................................................................................................... 27
CERTIFICATE OF COMPLIANCE ............................................................................................ 28
ii
TABLE OF AUTHORITIES
Cases
Acosta-Huerta v. Estelle,
7 F.3d 139 (9th Cir. 1992)....................................................................................21
Arkansas Edu. Television Co,

m’n v. Forbes, 523 U.S. 666 (1998) ....................................................................18
Balint v. Carson City,

180 F.3d 1047 (9th Cir. 1999)..............................................................................14
Bloedorn v Grube,
631 F.3d 1218 (11th Cir. 2011)............................................................................18
Branch Banking & Tr. Co. v. D.M.S.I., LLC,

871 F.3d 751 (9th Cir. 2017)................................................................................14
Cabrera v. Cordis Corp.,

134 F.3d 1418 (9th Cir. 1998)..............................................................................23
Cachil Dehe Band of Wintun Indians of Cousa Indian Community v. California,

547 F.3d 962 (9th Cir. 2008)................................................................................20
Dang v. Cross,
422 F.3d 800 (9th Cir. 2005)................................................................................24
Didrickson v. United States Dep’t of the Interior,

982 F.2d 1332 (9th Cir. 1992)..............................................................................24
Dodd v. Hood River Cty.,

59 F.3d 852 (9th Cir. 1995)..................................................................................23
Eberle v. City of Anaheim,

901 F.2d 814 (9th Cir. 1990)................................................................................21
Ellingson v. Burlington N., Inc.,

653 F.2d 1327 (9th Cir. 1981)..............................................................................21
Frudden v. Pilling,
877 F.3d 821 (9th Cir. 2017)................................................................................14
iii
Gathright v. City of Portland,

439 F.3d 573 (9th Cir. 2006)................................................................. 3,11,14, 15
Greenwood v. F.A.A.,
28 F.3d 971 (9th Cir. 1994)..................................................................................21
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,

515 U.S. 557 (1995) ................................................................................... 16,17,20
Litchfield v. Spielberg,
736 F.2d 1352 (9th Cir. 1984)..............................................................................22
McMahon v. City of Panama City Beach,

180 F.Supp.3d 1076 (Flor. 2016) .........................................................................17
Miller v. Fairchild Indus., Inc.,

797 F.2d 727 (9th Cir. 1986)................................................................................21
Nat’l Am. Ins. Co. v. Certain Underwriters at Lloyd’s London,

93 F.3d 529 (9th Cir. 1995)..................................................................................22
Nelson v. Pima Community College,

83 F.3d 1075 (9th Cir. 1996)....................................................... 4, 7, 8, 10, 11, 12
Olsen v. Idaho State Bd. of Medicine,

363 F.3d 916 (9th Cir. 2004)................................................................................14
Parks v. City of Columbus,

395 F.3d 643 (6th Cir. 2005)................................................................................19
Perry Educ. Ass'n. v. Perry Local Educators' Ass'n.,

460 U.S. 37 (1983) ................................................................................................19
Pleasant Grove City, Utah v. Summum,

555 U.S. 460 (2010) ..............................................................................................17
Preminger v. Peake,
552 F.3d 757 (9th Cir. 2008)................................................................................21
Sistrunk v. City of Strongsville,

99 F.3d 194 (1996) ...............................................................................................16
iv
United States v. Frandsen,

212 F.3d 1231 (11th Cir. 2000)............................................................................18
United States v. Good Samaritan Church,

29 F.3d 487 (9th Cir 1994)...................................................................................23
United States v. Urena,

659 F.3d 903 .........................................................................................................21
Whittaker Crop. v. Execuair Corp.,

953 F.2d 510 (9th Cir. 1992)................................................................................23
Witherow v. Paff,
52 F.3d 264 (9th Cir. 1995)....................................................................................4
Rules
Fed. R. App. P. 32(a)(6) ...........................................................................................28
Fed. R. App. P. 32(a)(7)(B)(iii) ...............................................................................28
Fed.R.App.P. 28(a)(5) ..............................................................................................21
Fed.R.Civ.P. 12(b)(6)...............................................................................................22
Fed.R.Civ.P. Rule 16 ........................................................................................ 24, 25
Fed.R.Civ.P. Rule 61 ...............................................................................................24
Ninth Circuit Rule 28 ...............................................................................................26
Rule of Civil Procedure 3.7 .....................................................................................24
v
INTRODUCTION
This case concerns a lawsuit filed by Roy Warden (“Warden”) that was big
on allegations about conspiracies and violations of constitutional rights by City
Defendants, but in the face of a City summary judgment motion, he failed to
provide any evidence to warrant a continued expenditure of valuable court or
governmental resources.
On May 1, 2012, members of the May 1st Coalition (“Coalition”) held their
annual parade and rally at Armory Park in Tucson, celebrating worker and
immigrant rights. The Coalition obtained an exclusive use permit from the City of
Tucson for part of Armory Park for its rally. To set this area apart, they erected
temporary fencing and posted peacekeeper volunteers at entry and exit points.
They welcomed persons to the rally that shared their viewpoints on immigration.
Warden was not one of those persons, and had been excluded from the rally for
years, based on known, prior, inflammatory conduct.
In 2006, Warden entered Armory Park during a similar rally. At that time,
there was no exclusive use permit and Warden was free to enter. In the midst of the
rally, Warden made inflammatory statements and burned two Mexican flags. He
incited a disturbance that culminated in violence and several arrests. Subsequently,
the Coalition, in an attempt to prevent the fiasco of 2006, obtained an exclusive use
permit for its May Day rallies.
1
On May 1, 2012 Warden attempted entry into the rally. The Coalition
refused him and police officers alerted him he was unwelcomed inside the
enclosed, permitted exclusive use area. Warden then protested, without
interference, directly across the street from the entrance to the exclusive use area,
delivering his anti-immigration message with a bullhorn. There was no violence in
2012, just as there hadn’t been at any other May Day rally since the issuance of
exclusive use permits.
Warden nonetheless filed a lawsuit against police officers, Tucson Park
employees who processed and approved the exclusive use permit as outlined by the
Tucson City Code, and against the City Manager, the City Attorney and the Tucson
Police Department legal advisor (hereafter “City Defendants”). He alleged First
Amendment violation of his freedom of speech; retaliation for having delivered his
anti-immigration, anti-open border policy message; and for conspiracy.
After nine months of discovery, the parties filed Motions for Summary
Judgment. Warden failed to produce any evidence, aside from self-serving and
conclusory statements, of constitutional violations. Rather, the evidence showed
that Warden had lawfully been kept out of the Coalition’s exclusive use area, and
instead freely exercised his right to freedom of speech across the street from
Armory Park, using a bullhorn. In a thorough twenty seven (27) page order, the
2
District Court granted summary judgment in favor of the City Defendants and
denied Warden’s motion.
ISSUES PRESENTED
1. The Granting of the City Defendants’ Motion for Summary Judgment.
A. Did the District Court properly distinguish Gathright and properly rely
upon authority from the United States Supreme Court and the Sixth
Circuit?
B. Did Warden waive review of the District Court’s granting of the motion
for summary judgment as to his retaliation and conspiracy claims where
he raised the issue, but failed to advance an argument in support of
reversing the District Court’s judgment?
2. Is the challenge to the scheduling conference properly subject to appeal, and if
so, was Warden aggrieved or prejudiced by the lack of the District Court Judge’s
personal presence or the fact that the scheduling conference was not on the record?
STATEMENT OF THE CASE
A. The Undisputed Facts
The Undisputed Facts are taken from the District Court’s Order granting the
City Defendants’ Motion for Summary Judgment and are supported by the record.
ER 018-044. Warden did not object to the Court’s findings in his brief, but instead
included excerpts from his complaint as statement of facts. Warden’s Brief at 10-
3
26. Warden relies on his allegations, and not evidence in the case. Mere allegation
and speculation do not create a factual dispute for purposes of summary judgment.
Witherow v. Paff, 52 F.3d 264, 266 (9th Cir. 1995), as cited in Nelson v. Pima
Community College, 83 F.3d 1075, 1081-2 (9th Cir. 1996). This Court should rely
on the District Court’s findings of evidence, the most important of which are
detailed below.
On April 10, 2006, was a national day of protest for workers and
immigrants’ rights across the United States, and an estimated 12,000-14,000
people marched in Tucson to protest the treatment of immigrants in this country.
The march ended in a rally at Armory Park, which was open to all members of the
public. Warden and several associates were counter-protesting that day against
illegal immigrants. They went into Armory Park in the midst of the pro-immigrant
marchers and burned two Mexican flags while denouncing illegal immigrants. ER
067-068 ¶ 6. The crowd of pro-immigration marchers became agitated and violent.
According to Warden, “the ‘pro-raza’ participants rioted in 2006” because of
Warden’s speech. ER 066-067 ¶ 4. The police arrested several marchers, but did
not arrest Warden. He was escorted away from the violent crowd. ER 070-073 ¶ 2.
Warden filed two law suits arising from the events of that day, CV 07-
190TUC-CRP and CV 07-664TUC-DCB. In both, Judgments were entered against
Warden. ER 018.
4
In response to the events of 2006, the Coalition, which organizes the annual
May Day march and rally, began applying for and obtaining exclusive use permits
for all future May Day rallies. “The Coalition planned to exclude Mr. Warden and
any others the Coalition thought did not share [their] peaceful message of worker
and immigrants’ rights in order to prevent another disturbance like the one that
occurred on April 10, 2006.” ER 071 ¶ 5, 075 ¶ 3.
On March 14, 2012, Pancho Medina, on behalf of the Coalition, wrote a
letter to Peg Weber and Fred Gray, employed by City of Tucson, Department of
Parks and Recreation, requesting use of Armory Park on May 1, 2012 to celebrate
“International Workers Day.” ER 081 ¶ 14, 088-089. On March 19, 2012 Medina
wrote a second letter to Fred Gray and Reenie Ochoa, another Parks and
Recreation employee, further explaining the purpose of the exclusive use permit
was to “prohibit people from entering the park wanting to disrupt [and] incite
violence.” ER 082 ¶ 19, 090-092.
On March 26, 2012, Defendant Reenie Ochoa confirmed the Coalition’s
May 1, 2012, Armory Park reservation for a “facility rental” in a letter sent to
Medina. ER 082-083 ¶¶ 20-22, 100-102. On April 27, 2012, Defendant Ochoa sent
an email to Tucson City Attorney Dennis McLaughlin and Defendants Mike
Rankin & Lisa Judge regarding the Coalition Exclusive Use Permit, agreeing “it
looks fine.” ER 083 ¶ 22, 103-105. The email included “a copy of (1) an April 27,
5
2012 letter (aka “Exclusive Use Permit”) and (2) a map of the designated area in
Armory Park covered by the Exclusive Use Permit.” ER 083 ¶ 23, 103-105.
The “Exclusive Use Permit Letter” stated Defendant Gray (1) had reviewed
Medina’s request, (2) had discussed the application with Tucson Parks and
Recreation staff, the Tucson Police Department and the City Attorney, and (3)
further instructed Medina “it will be your responsibility to monitor access (and) in
the event that you wish to deny someone access, or request someone leave the
designated ‘exclusive use’ area, it will be your responsibility to tell them to do so.
Should anyone refuse your request you would need to contact Tucson Police
Department staff on site via 911.” ER 106-108, 109-111.
Lt. Sayre with the Tucson Police Department explained that “[t]he Coalition
staffed the entrances to the exclusive use area with peacekeepers, including
[activist] Jon Miles, who was in charge of security for the May 1, 2012, event, and
[Sayre] coordinated with them for a peaceful, non-violent event. Miles was in
direct contact with police in the event disruptive persons showed up at the
exclusive use area that he wanted removed.” ER 133 ¶ 5.
On May 1, 2012, when Warden appeared at Armory Park, he was informed
by Lt. Sayre, Lt. Lopez, and Captain McCarthy, that the permit holders would not
allow him entry into their exclusive use area of Armory Park. Id. ¶ 7.
6
Police allowed Warden to, and he did, counter-protest with a bullhorn on the
sidewalk across the street from the rally entrance for several minutes as marchers
walked past him. Warden’s message was against open borders and not shared by
the protesters at the Armory Park rally. “No members of the Tucson Police
Department interfered with Mr. Warden’s counter-protest and no restrictions were
placed upon him.” Id. ¶ 8.
Subsequently, Warden attempted to enter into the exclusive use area of
Armory Park through one of the entrances. Jon Miles was present and denied
Warden entry into the rally. Tucson Police, including Lt. Sayre, re-informed
Warden that he was not permitted entry because the permit holders had exclusive
use of areas of the park and did not want him inside. Id. ¶ 9.
Jon Miles had coordinated peacekeeping and security for the May 1st rallies
from 2006 through May 1, 2012, and was there in 2006 when the Plaintiff entered
the park at the end of the march and made comments about Mexicans which Miles
perceived to be inflammatory, racist, and Warden burned a Mexican flag. ER 074-
075 ¶ 2. “[A] riot broke out resulting in violence and several arrests were made by
the Tucson Police Department.” Id.
The Coalition obtained exclusive use permits after 2006 for the May 1st
rallies in order to exclude Warden and any others the Coalition believed did not
share the Coalition’s belief in a peaceful protest for immigrants’ rights. ER 075 ¶
7
Miles obtained, and members of the Coalition installed, orange snow fencing
on the borders of the area of the park outlined by the permit. “The Coalition, with
the aid of the fencing and monitored entrances, permitted only those persons
sharing our message of worker and immigrant rights to enter Armory Park during
our rally.” Id. ¶ 4.
On May 1, 2012, Miles saw the Plaintiff outside the rally area as
marchers arrived at the park. Warden was delivering his message via bull horn to
the members of the May 1 Coalition march. His message was not consistent with
the Coalition’s message of worker and immigrant rights. Id. ¶ 6. According to
Miles, he told Warden “he was not welcome inside Armory Park,” and the
Defendant police officers informed Warden he was not allowed inside Armory
Park because the May 1st Coalition had an exclusive use permit for the park. Id. ¶
7. Warden left. Id.
Although Warden claims the May 1, 2012 rally at Armory Park was “free
and open to the public,” the District Court found that Warden misstated the
evidence. The District Court noted that the rally announcement was not an
invitation to a public meeting; the Coalition invited the public to a march and rally
that was free and open to all community members who shared the Coalitions’
commitment to social justice and peace. ER 127-128. Warden misrepresented his
desire to participate as being non-confrontational, asserting he did not go to
8
“protest and oppose” them but to communicate on shared worthy ideals of civil
liberties and human rights, ER 069 ¶ 10, 131, but he admits to stark disagreements
with the leaders of the rally, and admits that he wanted to exercise his right to free
speech to tell the crowd at the rally their leaders had lied to and deceived them
because illegal immigration exploits and impoverishes Mexicans for the financial
benefit of others, including the Defendants. ER 113-115 ¶¶ 7-15.
The District Court concluded that Warden, by his own admission, sought to
attend the rally to speak as a counter-protestor against illegal immigration. ER 026.
According to the District Court’s Order, “It is undisputed [that Warden] did
not enter the rally, did not interfere with the permittees exclusive use of the
permitted area, and was allowed to counter-protest outside the rally. He was not
excluded pursuant to Tucson Code § 21-3(7.4), the park regulation prohibiting any
person in a park from ‘disturb[ing] or interfer[ing] unreasonably with any person
or party occupying any area, or participating in any activity, under the authority of
a permit license or reservation.’ There was no determination by either the Coalition
or the police that [Warden] would unreasonably disturb or interfere with the rally.
The Court assumes that the police would constitutionally apply the prohibitions in
TCC 21-3(7.4), but its enforcement is not an issue in this case. Here, [Warden] was
excluded from the rally because the Coalition did not want him there based on his
9
past, present, and intended ongoing future denunciation of illegal immigration.”
ER 034.
Although Warden alleged a conspiracy, the District Court found that “In
addition to there being no evidentiary support for this claim, it fails because there
is no constitutional violation.” ER 035, n. 17.
B. This Lawsuit
On April 25, 2014, Warden filed the Complaint in this case alleging
intentional and negligent violations of the First Amendment to the United States
Constitution because he was refused access to Armory Park on May 1, 2012. On
August 10, 2015, the District Court denied a Motion to Dismiss filed by City
Defendants, finding Warden alleged sufficient facts to state his claim, and allowed
the case to go forward for disposition on the merits. ER 019.
Before discovery began, on December 14, 2015 the District Court set a
pretrial scheduling conference for January 26, 2016. ER 135. The court indicated
“The conference will be held telephonically with the Judge’s law clerk, Greer
Barkley.” Id. The parties were directed to confer 21 days prior to the conference.
Id. The court also directed the parties to prepare a joint case management plan and
file it not less than 5 days before the scheduling conference. ER 136. Warden
elected not to file a joint case management plan with City Defendants so they filed
their own plan. ER 137. Warden filed his own report, asserting among other things
10
that he sought stipulations, including that City Defendants would not file, inter
alia, a motion for summary judgment because he was of the opinion that since the
District Court had denied City Defendant’s motion to dismiss on the pleadings, that
would “re-litigate” the Gathright issue in this case. ER 140. City Defendants
indicated they would not stipulate. ER 138.
The scheduling conference proceeded January 26, 2016, with the District
Court’s law clerk in attendance. ER 143. It was not on the record. Id. The City
Defendants indicated they would not agree to a stipulation to a mutual expert, and
the law clerk indicated to Warden she was present merely to get dates for the
scheduling order. ER 144-145. Warden filed a “Memorandum of Court Violations”
on January 31, 2016. ER 141-147. The memorandum discussed procedural due
process, but notably is just a memorandum; it does not include an objection, and
more importantly is does not move the District Court to do anything. Id. On
February 4, 2016, the District Court issued its Order regarding scheduling, which
included an order that all discovery be completed by September 8, 2016. ER 151.
City Defendants filed a Motion to Strike Warden’s Memorandum. ER 155-
158. As Warden’s Memorandum mischaracterized the nature of the proceeding,
inserted threats of violence, and because it was improper as casting aspersions on
the City Defendants and counsel, it had no place in the court’s file. Id. Warden
filed an opposition to the motion, describing his own memorandum as “inert.” ER
11
159. While Warden complained generally about the off the record conference not
attended by the District Court Judge, again he never objected formally, nor did he
move the District Court to do anything in this filing, either. Id.
The District Court issued its scheduling order on June 6, 2016. ER 049-064.
Among other things, it denied City Defendant’s Motion to Strike, indicating “If
[Warden] uses the term “inert” to mean “lacking the power to move … he is
correct that his Memorandum does not seek any redress. It is neither a motion nor
response to any pleading issue before the Court.” ER 051. The District Court noted
Plaintiff’s complaints about the scheduling conference being an opportunity to take
action on matters such as formulating and simplifying issues or eliminating
frivolous claims and defenses, but that this District Court Judge used the Rule 16
scheduling conference for setting case management deadlines for conducting
discovery and filing dispositive motions. ER 051-052.
The District Court treated the memorandum as a motion that all future
interactions with the Court be conducted on the record, and granted that request.
ER 053. The Court chastised Warden regarding his “inert” filing, and admonished
him not to use the case docket as a venue for political grandstanding. Id.
Additionally, the District Court extended case management deadlines with
discovery to be completed by November 1, 2016. ER 063.
12
Warden filed his Motion for Summary Judgment January 31, 2017; City
Defendants filed their response March 13, 2017; and Warden replied April 10,
2017. City Defendants filed their Motion for Summary Judgment February 1,
2017; Warden filed his response March 26, 2017; and City Defendants replied
April 7, 2017.
In an Order dated July 24, 2017, the District Court (1) denied Warden’s
Motion for Summary Judgment and (2) granted the City Defendants’ Motion for
Summary Judgment. ER 044. That same date, the District Court entered judgment
in favor of City Defendants and against Warden, and the complaint was dismissed.
ER 017. Warden filed his Notice of Appeal from a Judgment of Dismissal in a
Civil Case on August 12, 2017. ER 001
SUMMARY OF ARGUMENT
The District Court properly granted the City Defendants’ Motion for
Summary Judgment after a thorough analysis of all relevant authority concerning
dueling First Amendment rights. Warden abandoned any challenge to the dismissal
of his First Amendment Retaliation and Conspiracy Claims.
Warden’s challenge to the scheduling conference is beyond the scope of the
appeal, and the lack of the District Court Judge’s personal presence or of a record
did not aggrieve or prejudice Warden, and at worst was a harmless error.
13
ARGUMENT
1. The Granting of the City Defendants’ Motion for Summary Judgment.
The standard of review for the granting of summary judgment is de novo.
Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017).
A. The District Court properly distinguished Gathright and relied upon

persuasive authority from the United States Supreme Court and the
Sixth Circuit in reaching its ruling granting the Motion for Summary
Judgment.
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. See Frudden v. Pilling, 877 F.3d 821, 828 (9th Cir. 2017); Olsen
v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004). 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).
(1) No genuine issue of material fact exists here, meaning Gathright

does not apply.
There is no genuine issue as to a material fact here and Warden’s reliance on
Gathright v. City of Portland, 439 F.3d 573 (9th Cir. 2006) is unavailing. Warden
claims the rally was open to the public – which would invoke Gathright – but as
14
the District Court pointed out, Warden misstates the evidence. ER 025-026. It was
not open to everyone. By Warden’s own admission, the rally was fenced off, ER
114, ¶ 11, and rally organizers were positioned at the entrance to the enclosed area
and kept Warden from entering the rally. ER 084 ¶ 28, 085 ¶ 33, 096, 108 ¶ 15.
The Coalition invited the public to a rally free march and open to all community
members that shared the Coalition’s commitment to social justice and peace. ER
127-128. Warden admits that he had stark disagreements with the leaders of the
rally. ER 113-115 ¶¶ 7-15.
Additionally, the purpose of the exclusive use permit was to prevent the riot
Warden caused in 2006 when Armory Park was opened to all members of the
public and to exclude Warden specifically because he did not share the Coalition’s
peaceful message of worker and immigrants’ rights. ER 075 ¶ 3. The Coalition had
excluded Warden annually from the May Day rally for many years prior. (Id, ER
114 ¶ 11.
As Warden had not been welcome for years to the rally, he had no evidence
that the Coalition was a rally free and opened to the public. Gathright does not
apply, and the District Court was correct in distinguishing it and relying upon other
persuasive authority in rendering its decision.
15
(2) Warden’s First Amendment claim fails.
(a) Hurley applies as City Defendants could not force a political

rally to include discordant speakers, depriving the rally of its
own rights to freedom of speech.
The District Court found that Hurley v. Irish-American Gay, Lesbian &
Bisexual Group of Boston, 515 U.S. 557, 579 (1995) applies in this case, because
the City of Tucson may not constitutionally require a permittee organization like
the Coalition to include discordant speakers in its rally, a collectively expressive
activity. ER 43. This is correct because one who speaks can decide what not to say
and government cannot compel affirmance of a belief with which the speaker
disagrees. Hurley, 515 U.S. at 573.
Due to the Coalition’s rally not being free and open to the public, even if
held in a traditional public forum, the rally was a political rally expressing a
viewpoint that Warden opposed. ER 113-115 ¶¶ 7-15. Warden’s inclusion in the
rally would alter the message the Coalition sought to send concerning its pro-
immigration stance. Warden’s discordant views would force his speech upon the
Coalition, and in the context of the rally, violate the right of the Coalition members
to their right to Freedom of Speech. See Sistrunk v. City of Strongsville, 99 F.3d
194, 198 (1996) (city may not constitutionally require a permittee organization to
include discordant speakers in its expressive activity). Therefore, Warden’s First
Amendment rights were not violated, because to allow him inside the rally would
16
have forced the City Defendants to deprive the Coalition of its right to freedom of
speech. Warden was allowed to speak directly across the street with a bullhorn at
the entrance to Armory Park. ER 075 ¶ 6, 113 ¶ 8. The District Court properly
applied Hurley to the facts in this case in finding no First Amendment violation of
Warden’s rights.
(b) Limited public forum analysis.
The District Court found that even if Hurley did not apply, the area in
Armory Park exclusively permitted for the rally on May 1, 2012 was a limited
public forum, which the City reserved for its intended purpose pursuant to a neutral
reasonable time, place and manner regulation. ER 043.
A limited public forum—public property limited to use by certain groups or
dedicated solely to the discussion of certain subject—is subject to a less strict
standard of review than a traditional public forum, when a court reviews whether
the state restricts speech therein. Pleasant Grove City, Utah v. Summum, 555 U.S.
460, 470 (2010). The restrictions on speech in a limited public forum must be
reasonable and viewpoint neutral. Id.
To transform a traditional public form into a limited public forum, there
needs be some sort of visible, meaningful distinction setting the event apart from
the venue on which it is held, changing the nature, use, characteristics, purpose or
function of the forum. McMahon v. City of Panama City Beach , 180 F.Supp.3d
17
1076, 1099-1100 (Flor. 2016), citing Bloedorn v Grube, 631 F.3d 1218, 1233-34
(11th Cir. 2011) (citing Arkansas Edu. Television Com’n v. Forbes, 523 U.S. 666,
677 (1998); United States v. Frandsen, 212 F.3d 1231, 1237 (11th Cir. 2000).
Here the District Court was correct that the relevant part of Armory Park
was temporarily transformed to a limited public forum, and that the restrictions on
speech here were reasonable and viewpoint neutral. The Coalition obtained an
exclusive use permit, set up snow fencing and posted peacekeepers to regulate
entrance. ER 075 ¶¶ 1 & 4, 085 ¶ 33, 114 ¶ 11. The rally was only open to its
invitees. ER 127-128. The rally set itself apart from an unfettered use of Armory
Park for May 1st, such as had occurred in 2006. The City’s restrictions were
reasonable: the temporary, partial restriction of Armory Park facilitated the First
Amendment rights of invitees of the Coalition. The City’s restrictions were made
regardless of viewpoint: they were providing a venue for a rally, not a rally just for
a certain viewpoint. As the District Court pointed out, Warden could have applied
for a permit like anyone else. ER 040. Warden’s rights were not violated.
(c) Traditional public forum analysis.
The District Court found that even if Armory Park remained a traditional
public forum, subject to strict scrutiny, Warden’s speech was subject to neutral,
time, place and manner restriction, narrowly tailored to achieve the significant
government interest in protecting the free speech rights of permittees by ensuring
18
that these individual and groups, having differing views, can be heard in an orderly
and appropriate manner, and the City left open ample alternative channels for
communication. ER 043.
In a traditional public forum, the state may only enforce a content-based
exclusion if actions meet the strictest scrutiny, and therefore must show that its
regulation is necessary to serve a compelling state interest and that it is narrowly
drawn to achieve that end. Parks v. City of Columbus, 395 F.3d 643, 653 (6th Cir.
2005), citing Perry Educ. Ass'n. v. Perry Local Educators' Ass'n., 460 U.S. 37
(1983). But the state may also enforce regulations at the time, place and manner of
expression which are content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of communication.
Id.
If the part of Armory Park denied entry to Warden on May 1, 2012, it was a
traditional public forum, Warden’s exclusion served a compelling state interest and
was narrowly drawn to achieve that end. Warden’s actions had caused a riot six
years earlier at the very same venue, resulting in violence, arrests, and disturbing
public safety and peace. ER 66-67 ¶ 4, 072-073 ¶2, 74 ¶ 2. The exclusive use
permit did not deny him the right to speak ER 109-110; he did so freely across the
street and was also not restricted from other parts of Armory Park not made part of
the Coalition’s exclusive use permit. ER 75 ¶ 6, 133 ¶ 8. Warden was prevented
19
from inciting the crowd to violence, and that is it. The permit was temporary, for a
limited area, and the process to obtain it is open to all regardless of viewpoint. It
allowed an orderly and appropriate presentation of all viewpoints (see Hurley): the
Coalition’s rally delivered its viewpoint, without interruption or cacophony;
Warden delivered his viewpoint directly across the street. All of this was
accomplished without the violence or riot the City had experienced in 2006. The
compelling governmental interest of allowing all persons who wished to express
their viewpoints to the public pursuant to the First Amendment was achieved. The
compelling governmental interest of keeping the peace and preventing violence
was also achieved. At most, the width of a street separated Warden from the
Coalition and the entry point to its rally. This is a win-win-win for Warden, the
Coalition and the City, which the District Court correctly found that no First
Amendment rights were violated in the effort.
(3) Warden waived a review of the dismissal of his retaliation and

conspiracy claims.
If an issue is listed among grounds for appeal, but the appellant advanced no
argument in support of reversing the district court’s judgment with respect to that
claim, the issue is waived, and the Court of Appeals can decide the matter in favor
of the appellee as the issue is abandoned. See Cachil Dehe Band of Wintun Indians
of Cousa Indian Community v. California, 547 F.3d 962, 968 n.3 (9th Cir. 2008).
20
The court of appeals will not ordinarily consider matters on appeal that are not
specifically and distinctly argued in appellant’s opening brief. Miller v. Fairchild
Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986). Where an issue is raised in an
appellate brief but not supported by argument, that issue is also waived. See
Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992). Fed.R.App.P. 28(a)(5)
(appellant’s brief shall contain a “statement of the issues presented for review”).
This Court also “will not manufacture arguments for an appellant, and a bare
assertion does not preserve a claim….” Greenwood v. F.A.A., 28 F.3d 971, 977 (9th
Cir. 1994). City Defendants will likewise not further discuss these issues, to avoid
any possibility that this Court will consider them to have been raised in this brief.
See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990); Ellingson v.
Burlington N., Inc., 653 F.2d 1327, 1332 (9th Cir. 1981).
Warden did not discuss these claims or the District Court’s findings in his
brief. These claims are abandoned.
2. The Scheduling Conference
The standard of review for the trial court’s decisions regarding management
of litigation are reviewed only for an abuse of discretion. See Preminger v. Peake,
552 F.3d 757, 769 n. 11 (9th Cir. 2008). Warden’s reliance on United States v.
Urena, 659 F.3d 903, 9081 (9th Cir. 2011) is misplaced. Urena is inapposite here; it
1
Counsel cannot locate the quoted language in Warden’s brief at 7 in the Urena opinion.
21
addresses a standard of review for evidentiary rulings, not for court decisions
regarding management of litigation.
A. Warden’s challenge to the scheduling conference is not properly

subject to appeal due to scope and waiver, and Warden was not
aggrieved by the lack of the District Court Judge’s personal presence
or the fact that the conference was not on the record.
Orders that are not material to the final judgment are not subject to review
on appeal from the final judgment. See Nat’l Am. Ins. Co. v. Certain Underwriters
at Lloyd’s London, 93 F.3d 529, 540 (9th Cir. 1995) (declining to review an order
compelling defendants to turn over certain documents during appeal from
summary judgment for plaintiff because the district court did not consider
contested documents due to defendants’ refusal to turn them over). Indeed, an
appeal from a final judgment draws in question all earlier, non-final orders and
rulings which produced the judgment. Litchfield v. Spielberg, 736 F.2d 1352, 1355
(9th Cir. 1984).
The order granting summary judgment is the dispositive, final judgment of
the case. The scheduling order did not produce the judgment, but only set
discovery deadlines. ER 045-048.
Warden’s claim that City Defendants sought at the scheduling conference to
re-litigate Fed.R.Civ.P. 12(b)(6) matters already decided by the District Court is
mistaken. Warden confuses the purpose and effect of a motion to dismiss and a
22
motion for summary judgment.2 His attempt to secure stipulations precluding the
City Defendants from their defense of the case were misplaced, and did not affect
the final judgment in the case where he simply didn’t have the evidence to support
his conspiracy theories and other claims.
The court of appeals does not consider an issue not passed upon in the
District Court. Dodd v. Hood River Cty., 59 F.3d 852, 863 (9th Cir. 1995). An issue
is generally deemed waived if it is not raised sufficiently for the trial court to rule
on it. Whittaker Crop. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992). This
rule applies to both procedural and substantive objections. See Cabrera v. Cordis
Corp., 134 F.3d 1418, 1420 (9th Cir. 1998).
Warden never objected to the pre-hearing conference below. He did not file
a motion for another hearing. Warden followed the order, and indeed received an
additional three months of discovery upon his request, granted by the District
Court. ER 63. It is not disputed that the District Court never reached the merits of
the issue that Warden presents in his appeal. The issue is waived.
A person has standing to appeal only if he or she is aggrieved by the
challenged order. See United States v. Good Samaritan Church, 29 F.3d 487, 488
(9th Cir 1994). A person is aggrieved by a district court order if it poses a threat of
“particularized injury” leading to a personal stake in the outcome of the appeal. See
2
E.g.: “The Court’s 15 page order denying Defendant’s Motion to Dismiss (Doc. 29) essentially denied all
Defendants constitutional defenses and endorses all Plaintiff’s claims; moreover the Court, thoughtfully, provided
Plaintiff with an additional claim.” ER 163, lines 8-11.
23
Didrickson v. United States Dep’t of the Interior, 982 F.2d 1332, 1338 (9th Cir.
1992).
The scheduling order set four case milestones. ER 45-47. It did not aggrieve
Warden as the order didn’t deprive him of anything. Rather, it facilitated the timely
resolution of his lawsuit, even if it didn’t end the way he would have chosen.
Even if a District Court commits legal error, the judgment will be affirmed
where it is more probable than not that the error was harmless. See Dang v. Cross,
422 F.3d 800, 812 (9th Cir. 2005). Fed.R.Civ.P. Rule 61, defines a harmless error
as one that does not affect the substantial rights of the parties or does not defeat
substantial justice.
Warden claims that he’s lost a procedural right due to the lack of the District
Court Judge’s personal presence and the fact that the scheduling conference was
not recorded. First, a scheduling conference is discretionary. Fed.R.Civ.P. Rule 16.
Secondly, the District Court clarified it uses those conferences to set dates for the
case, not for the purposes Warden wished for. ER 052. Third, the City Defendants
were not going to stipulate their right to file a Motion for Summary Judgment. ER
138. Warden was out nothing from the conference, and therefore it did not affect
the outcome of the case at all. Any error was harmless.
As regards to Warden’s request for reassignment of Judge Bury and
Magistrate Velasco, a ruling on Local Rule of Civil Procedure 3.7, and a
24
declaration regarding the spirit of Rule 16, Warden’s claims are baseless and
beyond the scope of this appeal and should be summarily denied. They are not
related to the final outcome of the case, were not ruled on below, and he cannot
show he was aggrieved by them in any event.
CONCLUSION
City Defendants respectfully request that the Court affirm the District
Court’s order of July 24, 2017 granting summary judgment for City Defendants.
Furthermore, City Defendants respectfully request that any other relief requested
by Warden be denied.
Dated: February 2, 2018
Respectfully submitted,
/s/ Baird S. Greene

Baird S. Greene
Principal Assistant City Attorney for
Michael G. Rankin
City Attorney
P.O. Box 27210
Tucson, AZ 85726-7210
Telephone: (520) 791-4221
Facsimile: (520) 791-4188
25
STATEMENT OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, Defendant-Appellee hereby advises
the Court there are no known related cases pending in the United States Court of
Appeals for the Ninth Circuit to which counsel is aware.
26
CERTIFICATE OF SERVICE
I hereby certify that on February 2, 2018, 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. I certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.
/s/ Baird S. Greene

Baird S. Greene
27
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME

LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE
REQUIREMENTS
1. This brief complies with the type-volume limitations of Fed. R. app. P.
32(a)(7)(B) because this brief contains 5,820 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
in fourteen-point Times New Roman.
/s/ Baird S. Greene

Baird S. Greene
28

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Case: 17-16640, 02/02/2018, ID: 10749473, DktEntry: 13, Page 1 of 33

UNITED STATES COURT OF APPEALS

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

CITY DEFENDANTS’ ANSWERING BRIEF

TABLE OF AUTHORITIES ......................................................................................................... iii

Arkansas Edu. Television Co,

Balint v. Carson City,

Branch Banking & Tr. Co. v. D.M.S.I., LLC,

Cabrera v. Cordis Corp.,

Cachil Dehe Band of Wintun Indians of Cousa Indian Community v. California,

Didrickson v. United States Dep’t of the Interior,

Dodd v. Hood River Cty.,

Eberle v. City of Anaheim,

Ellingson v. Burlington N., Inc.,

Gathright v. City of Portland,

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,

McMahon v. City of Panama City Beach,

Miller v. Fairchild Indus., Inc.,

Nat’l Am. Ins. Co. v. Certain Underwriters at Lloyd’s London,

Nelson v. Pima Community College,

Olsen v. Idaho State Bd. of Medicine,

Parks v. City of Columbus,

Perry Educ. Ass'n. v. Perry Local Educators' Ass'n.,

Pleasant Grove City, Utah v. Summum,

Sistrunk v. City of Strongsville,

United States v. Frandsen,

United States v. Good Samaritan Church,

United States v. Urena,

Whittaker Crop. v. Execuair Corp.,

Fed. R. App. P. 32(a)(7)(B)(iii) ...............................................................................28

Fed.R.App.P. 28(a)(5) ..............................................................................................21

Fed.R.Civ.P. Rule 16 ........................................................................................ 24, 25

Fed.R.Civ.P. Rule 61 ...............................................................................................24

Ninth Circuit Rule 28 ...............................................................................................26

Rule of Civil Procedure 3.7 .....................................................................................24

on allegations about conspiracies and violations of constitutional rights by City

Defendants, but in the face of a City summary judgment motion, he failed to

provide any evidence to warrant a continued expenditure of valuable court or

years, based on known, prior, inflammatory conduct.

incited a disturbance that culminated in violence and several arrests. Subsequently,

permit for its May Day rallies.

enclosed, permitted exclusive use area. Warden then protested, without

delivering his anti-immigration message with a bullhorn. There was no violence in

exclusive use permits.

Warden nonetheless filed a lawsuit against police officers, Tucson Park

Police Department legal advisor (hereafter “City Defendants”). He alleged First

anti-immigration, anti-open border policy message; and for conspiracy.

conclusory statements, of constitutional violations. Rather, the evidence showed

denied Warden’s motion.

1. The Granting of the City Defendants’ Motion for Summary Judgment.

for summary judgment as to his retaliation and conspiracy claims where

he raised the issue, but failed to advance an argument in support of

reversing the District Court’s judgment?

2. Is the challenge to the scheduling conference properly subject to appeal, and if

STATEMENT OF THE CASE

A. The Undisputed Facts

immigrants’ rights across the United States, and an estimated 12,000-14,000

people marched in Tucson to protest the treatment of immigrants in this country.

067-068 ¶ 6. The crowd of pro-immigration marchers became agitated and violent.

According to Warden, “the ‘pro-raza’ participants rioted in 2006” because of

190TUC-CRP and CV 07-664TUC-DCB. In both, Judgments were entered against

occurred on April 10, 2006.” ER 071 ¶ 5, 075 ¶ 3.

On March 14, 2012, Pancho Medina, on behalf of the Coalition, wrote a