                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 21 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



STEVEN J. BLOMQUIST and SHARYL                   No. 11-16215
v. CUMMINGS, husband and wife,
                                                 D.C. No. 4:09-cv-00671-DCB
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

TOWN OF MARANA, an Arizona
municipal corporation; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                     Argued and Submitted December 4, 2012
                            San Francisco, California

Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.

       Plaintiffs Steven Blomquist and Sharyl Cummings appeal from the district

court’s order granting summary judgment in favor of the Town of Marana and

several of its police officers. We have jurisdiction under 28 U.S.C. § 1291, and we



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
affirm. Because the parties are familiar with the history of this case, we need not

recount it here.

                                            I

        The district court correctly determined that Plaintiffs’ claims against the

Town of Marana (“the Town”) failed as a matter of law because they lacked a

federal constitutional right to picket on the abandoned easement site. At the time

of the events giving rise to this suit, the Town Council had abandoned any public

right or interest in the easement. Plaintiffs have not challenged that abandonment

in this case, and no court has held that the abandonment was improper. The parties

have informed us that their settlement of the separate state litigation on that

question does not involve a determination that the abandonment was illegal or

void.

        Given that factual context, Plaintiffs cannot establish “general rights of free

speech on property privately owned and used nondiscriminatorily for private

purposes only.” Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 568 (1972). That

McClintock’s restaurant was generally open to members of the public legitimately

patronizing it does not entitle Plaintiffs to picket there. See id. at 569-70.

Plaintiffs’ “argument has as its major unarticulated premise the assumption that

people who want to... protest[]...have a constitutional right to do so whenever and


                                            2
however and wherever they please. That concept of constitutional law [has been]

vigorously and forthrightly rejected...” Id. at 568. See also Wright v. Incline

Village Gen. Improvement Dist., 665 F.3d 1128, 1138 (9th Cir. 2011).

      Even assuming, arguendo, that the public retained some right of access in

the abandoned easement, Plaintiffs did not have an unfettered right to picket. “The

existence of a right of access to [even] public property and the standard by which

limitations upon such a right must be evaluated differ depending on the character

of the property at issue.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460

U.S. 37, 44 (1983). The record before us reflects that, at most, the easement site is

a nonpublic forum, meaning that reasonable government restrictions on the content

of speech on the site are permissible. See Wright, 665 F.3d at 1134 (quoting

Preminger v. Peake, 552 F.3d 757, 765 (9th Cir. 2008)) (“A nonpublic forum is

government property that does not ‘by tradition or designation, serve as a forum

for public communication.’”).

      Because Plaintiffs lacked a federal constitutional right to picket on

McClintock’s property, the district court properly granted summary judgment.

                                          II

      The district court properly granted summary judgment in favor of the

individual defendants as to the alleged Fourth Amendment violations.


                                          3
      “It is well established that ‘an arrest without probable cause violates the

Fourth Amendment and gives rise to a claim for damages under § 1983.’”

Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1076 (9th Cir. 2011) (quoting

Borunda v. Richmond, 885 F.2d 1384, 1391 (9th Cir. 1988)). Here, however, the

undisputed facts establish that Officer Bennett had probable cause to arrest

Blomquist for criminal trespass. Officer Bennett knew that Blomquist had been

removed from McClintock’s property in the past and was well aware of the

ongoing dispute between Plaintiffs, the Town, and Saguaro Ranch concerning the

easement. He was dispatched to McClintock’s in response to a call from the

restaurant manager complaining that Blomquist was on McClintock’s patio without

permission and had disrupted its guests. When he arrived at McClintock’s, Officer

Bennett found Blomquist on the patio as the manager had described. Under these

circumstances, he had probable cause to arrest Blomquist for trespass under A.R.S.

§ 13-1503(A). Cf. Blankenhorn v. City of Orange, 485 F.3d 463, 472-73 (9th Cir.

2007) (describing facts supporting probable cause to arrest for criminal trespass

under California law).

      Having determined that probable cause existed to arrest Blomquist for

trespass, we need not determine whether probable cause existed for the disorderly

conduct charge. See Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004).


                                          4
                                          III

       The district court also correctly granted summary judgment on the retaliation

claims. Because Plaintiffs lacked a First Amendment right to picket or otherwise

occupy the site of the abandoned easement, they cannot establish that the

individual defendants questioned, cited, or arrested them in retaliation for the

exercise of their federal constitutional rights. See Skoog v. Cnty. of Clackamas,

469 F.3d 1221, 1231-32 (9th Cir. 2006) (stating elements of First Amendment

retaliation claim).

                                          IV

       In summary, the district court properly granted summary judgment in favor

of the Town and the individual defendants, as Plaintiffs were not engaged in

constitutionally protected speech and the officers did not violate Plaintiffs’ Fourth

Amendment rights. We need not and do not reach any other issue urged by the

parties.




       AFFIRMED.




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