Facts

The material facts in this action are essentially undisputed. The parties filed a Joint Stipulation Of Facts on Aug. 11, 2008, which included the following:

Plaintiffs Sherry Glaser and Renee Love are members of an organization, "Breasts Not Bombs" (BNB), a political advocacy group that formed on July 4, 2004. Since its formation, its female and male members have protested various political matters while topless.

Until the protest, which is the subject of this litigation, at no time during these public protests have any female topless members of the organization been arrested. The organization's use of "toplessness" is meant to convey the hypocrisy of the government and challenge its use of language to convince the public that they are doing good. The organization bares their breasts to express political dissent and uses irony - what many believe is shameful and immoral to this group is wholesome, decent and beautiful. At the time of the protest in question, the organization meant to contrast their view of their breasts as natural and decent to what they viewed as the indecent initiatives that Governor Arnold Schwarzenegger proposed for the general election held in October 2005, and what they viewed as the obscenity of an illegal war against Iraq waged by the federal government.

On Oct. 21, 2005, BNB submitted an application for a permit to the California Highway Patrol to stage a political protest on Nov. 7, 2005, the day before Election Day, in front of the state Capitol building on the west steps. The contact person was Sherry Glaser.

Officer Troy noted the name of the organization, contacted Glaser and told her that the application would be approved but that public nudity was not authorized under the permit. Officer Troy advised Glaser that she or anyone attending the event who protested completely topless would be in violation of the permit and the permit would be immediately revoked and those persons would be subject to arrest.

Officer Troy issued the permit on Oct. 27, 2005, which stated, "protest of this special election * * (ANY PERSON WHO EXPOSES PRIVATE PARTS IS SUBJECT TO ARREST FOR CALIFORNIA PENAL CODE SECTIONS 314 AND 647a. This permit is immediately canceled AND ALSO FUTURE REQUESTS FOR PERMITS ON STATE PROPERTY.)*******"

All the involved CHP officers had been previously informed before the protest by their superior officers of the grounds for arrest should Glaser or any female protesters completely expose their breasts in violation of the permit. All the involved CHP officers believed that it was illegal for females to protest on the Capitol grounds with their breasts completely exposed.

On Monday, Nov. 7, 2005, members of BNB staged a political protest in front of the State Capitol in Sacramento. Some male protesters removed their shirts, but were not arrested. Some female protesters removed their shirts, leaving their breasts partially covered, and they were not arrested. Glazer and Love removed their shirts on the Capitol grounds and were completely topless. They were handcuffed and arrested by Officers King and Greenfield, transported to the jail and charged with indecent exposure.

On Nov. 15, 2005, the Sacramento District Attorney's Office found that Glaser and Love's actions were politically motivated, did not meet the standard for prosecution, and did not file criminal charges against them.

PLAINTIFFS' CONTENTIONS:
The plaintiffs' First Amended complaint alleged false arrest and imprisonment, intentional infliction of emotional distress, violation of California Civil Code section 52.1 and the for violation of California Civil Code section 52.3.

DEFENDANTS' CONTENTIONS:
The defendants contend that the officers in question had probable cause to arrest. They also contended that all defendants are immune from suit based on Gov. Code sections 820.6 and 820.2.

Settlement Discussions

The parties participated in a mandatory settlement meeting, which did not result in settlement. The parties continued settlement discussions after the conference, and came to an agreement just prior to the date set for trial on damages.

Damages

The plaintiffs claimed emotional distress damages, as a result of their wrongful arrest and violation of their first amendment rights. The plaintiffs also sought attorney fees and statutory damages.

Result

The following section is taken from Judge McMasters' summary judgment decision. Summary adjudication of the first cause of action for false arrest and imprisonment is granted. The arrests were without probable cause. Summary adjudication of the second cause of action for intentional infliction of emotional distress is denied. Since there are triable issues of material fact, the motion must be denied, leaving it to the trier of fact to determine at trial. Summary adjudication of the third for violation of California Civil Code section 52.1 is granted. The plaintiffs asserted that their demonstration, which included nudity, is symbolic speech protected by the United States and the California Constitutions. The U.S. Supreme Court has long recognized that the protection of the First Amendment for speech does not end at the spoken or written word. An apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea. The courts look to whether an intent to convey a particularized message was present, and whether the likelihood was great that those who viewed it would understand the message. This includes conduct, which would otherwise be illegal. Texas v. Johnson (1989) 491 U.S. 397, 404. (flag burning). The plaintiffs asserted that defendant Stallman placed an unconstitutional prior restraint on the permit issued to BNB. The authority to grant permits, does not include the authority to bar protected symbolic speech. California Constitution, Art. I, sec. 2. Prior restraints on the exercise of First Amendment rights, bear a heavy presumption against constitutional validity. Grossman v. City of Portland (9th Cir. 994) 33 F.3d 1200, 1204. Permit restrictions must be narrowly tailored, which means that a time, place or manner restriction on First Amendment activity may not burden substantially more speech than is necessary to further the government's legitimate interests. Grossman, supra, 33 F.3d 1200, 1205. Here, the permit restriction's intent was to prevent plaintiffs from conveying their particular message. It was not narrowly tailored to serve a significant government interest. The defendants had previously rejected a proposal by plaintiffs' counsel that the demonstration occur in a tent. The Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, the burden normally falls upon the viewer to avoid further bombardment of his/her sensibilities simply by averting his/her eyes. Erznoznik v. Jacksonville (1975) 422 U.S. 205, 210-211. Here, the speech was to contrast the indecency of war with the naturalness of the human body. In the context of the content of the speakers and signage at the demonstration, there was a likelihood that those who viewed it would understand the message.

Other Information

SETTLEMENT CONFERENCE NOTES: After the plaintiffs won summary adjudication of the central claims in their case, parties engaged in settlement negotiations as to damages. The final settlement agreement requires defendants to pay plaintiffs $150,000. The defendants must also institute a training program for CHP officers in the Capitol Protection Section regarding first amendment rights. POST-TRIAL MOTIONS: The defendants filed a writ of mandate to overturn the trial court's summary adjudication, which was denied.