In Villegas v. Gilroy Garlic Festival, (— F.3d —, 2008 WL 4058566, Ca.A.9 (Cal.), September 3, 2008) the United States Court of Appeals considered whether a private festival and the city that sanctioned it violated the rights of festival attendees when a city police officer ordered them to leave for violating the festival’s unwritten dress code.
The court ruled that no constitutional rights were violated. The festival is a private entity and entitled to have a dress code. Therefore, it is constitutional for a police officer to enforce a private entity’s right to implement its dress code.
Facts
In response to fears that a perceived gang presence may be reducing attendance, the Gilroy Garlic Festival (“Festival”) adopted an unwritten dress code which, among other things, prohibited the wearing of clothing with gang insignias, including motorcycle club insignias.
In 2000, George Villegas and other members of the Top Hatters Motorcycle Club bought tickets and entered the Festival wearing their club vests, which displayed the club insignia of a skull with wings and a top hat, and the words “Top Hatters” and “Hollister.” As they entered, the Festival’s chair of security spotted them and contacted a Gilroy (“City”) police officer, who was armed and uniformed, asking that she tell the club members they would have to either remove their vests or leave the festival. The members left.
Villegas and the other members brought suit in federal district court against the Festival and the City alleging a violation of their right of free expression. The district court granted summary judgment for the Festival and City and a three-judge court of appeal panel affirmed. The majority of the circuit judges then ordered the case to be heard en banc before the entire court.
Decision
Private entities, unlike governments, have wide freedom to dictate the terms and conditions of attendance at their events, including dress requirements, the court said. For a private entity to be liable for a violation of constitutional rights, there must be such a “close nexus” between the entity and the state that its behavior “may be treated as that of the State itself,” the court said, quoting Brentwood Academy v. Tennessee Secondary School Athletic Association, 531U.S. 295 (2001).
The court found that although the City provided a permit for the festival, it occurred at a City park, and City police officers were present to provide security, the close nexus establishing the Festival’s policies as City policies was lacking. The Festival was not performing functions exercised traditionally by the City, nor did it assume control and governmental power over the property in question. The court noted that running festivals is not a traditional municipal function and the City did not relinquish control of the park area to the Festival. As the Festival was not performing City functions, it remained a private entity with a right to establish and enforce a dress code.
Further, the City could not be held liable for enforcing the dress code. It is not a constitutional violation for a police officer to enforce a private entity’s rights and since there is no constitutional violation, there can be no municipal liability, the court concluded.
Summary judgment for the Festival and City was affirmed.