Divided Ninth Circuit panel allows activist's suit against Arizona Senator to proceed

Reza v. Pearce, No. 13-15154 (9th Cir. Aug 18, 2015).

One day in February 2011, Salvador Reza, an activist for migrant workers’ rights, went to the Arizona Senate. He was there for a hearing on SB 1070, much of which the Supreme Court would later strike down. Reza sat in an overflow room because there was no room where the hearing was taking place. People in the overflow room clapped and booed in reaction to the hearing. There is some dispute over whether Reza was one of the people clapping or booing. In any event, Reza was identified as one of the noisemakers, and the Arizona Senate President—Senator Russell Pearce, one of the defendants here—barred him from re-entering the Senate. When Reza defied this ban, he was arrested. 

Reza then filed suit, asserting a violation of the First and Fourteenth Amendments. His claims were dismissed on summary judgment.

A majority of this Ninth Circuit panel now reverses in part, concluding that the Arizona Senate was a limited public forum, meaning that the restriction on Reza must be viewpoint-neutral and reasonable. While the restriction was viewpoint-neutral, a jury, if it believes Reza’s version of events, could find the complete bar on re-entry to be unreasonable, says the majority. At most, Reza was disruptive on one occasion only, and that disruption did not actually impede the Senate’s proceedings. And Ninth Circuit law clearly required an actual disruption to justify removing somebody from a legislative proceeding, so Reza’s suit against Senator Pearce may proceed. 

In an interesting side issue, the majority affirms the district court’s protective order, which prevented Reza from asking Senator Pearce about his acquaintance with J.T. Ready, a neo-Nazi who in 2012 shot and killed his girlfriend, his girlfriend’s daughter and granddaughter, and the daughter’s fiancé, all before killing himself.

Judge Wallace dissents in part, arguing that the majority reads Ninth Circuit precedent too broadly. On the date that Reza was barred from the Senate, Judge Wallace maintains, Ninth Circuit precedent held merely that a legislative body was permitted to remove attendees if they actually disrupted the proceedings—not that a legislative body was permitted to remove attendees only if they actually disrupted the proceedings. Thus, Judge Wallace concludes, no clearly established law prohibited Senator Pearce’s actions.