ORDER GRANTING SUMMARY JUDGMENT IN PART AND REMANDING REMAINING CLAIMS

CHARLES R. BREYER, U.S.D.J.

Now before the Court is the defendants' motion for summary judgment. Having considered the parties' papers, and with the benefit of oral argument on November 17, 2000, the defendants' motion for summary judgment is GRANTED IN PART as to the plaintiffs section 1983 claims. The Court hereby REMANDS the plaintiffs remaining state-law claims to the state court in which they were originally filed.

BACKGROUND

This suit involves the arrest of the plaintiff Charles Spingola at the University of California-Berkeley ("UC-Berkeley") campus on January 27, 1998. Officer Christopher Samuels of the UC-Berkeley campus police arrested the plaintiff for speaking too loudly and disturbing UC-Berkeley employees. Mr. Spingola alleges that his arrest violated his free speech and other rights under both the U.S. and California Constitutions.

I. THE EVENTS ON JANUARY 27, 1998

Sproul Plaza is a large, open square and pedestrian thoroughfare located at the south end of the UC-Berkeley campus. Sproul Hall, located on the east side of the plaza, is the primary administration building for UC-Berkeley. On Tuesday, January 27, 1998, around 1:00 p.m., the plaintiff began preaching in Sproul Plaza between the two flights of stairs leading up to the west side of Sproul Hall. He was preaching against abortion and homosexuality, as he had done for years on a regular basis.

Shortly after 1:00 p.m., Officer Samuels observed the plaintiff preaching in Sproul Plaza. The officer took no action to stop Mr. Spingola at that time. At approximately 1:10 p.m., Officer Samuels received a dispatch advising him that a UC-Berkeley employee in Sproul Hall had filed a noise complaint regarding Mr. Spingola's preaching. Officer Samuels returned to Sproul Plaza and told the plaintiff that the campus police had received a complaint about Mr. Spingola's preaching, that Sproul Hall was a place of business, and that the plaintiff was disrupting that activity with his preaching. Officer Samuels did not tell Mr. Spingola to leave, but instead asked him to lower his voice and advised him of UC-Berkeley rules regarding speech in Sproul Plaza. The plaintiff claims that he does not recall that Officer Samuels told him he could continue preaching if he lowered his voice.

The plaintiff refused to stop preaching, asserting that his free speech rights entitled him to continue. Officer Samuels indicated that he would be forced to arrest the plaintiff if someone filed a citizen complaint about the noise. Officer Samuels then left Sproul Plaza. Meanwhile, Mr. Spingola did not lower his voice. Instead, he turned away from the plaza and toward Sproul Hall so that he was facing the windows of the building while preaching. At 1:52 p.m., Officer Samuels was notified that the campus police had received a second noise complaint regarding Mr. Spingola's preaching, and he was again dispatched to Sproul Plaza, this time with another officer.

Before interacting with the plaintiff a second time, Officer Samuels went to the office of Dona Bretherick, the person who had filed both noise complaints. Her office, which was located on the third floor of Sproul Hall, faced the plaza where the plaintiff preached. Officer Samuels could hear Mr. Spingola from the office even though the windows were shut. Ms. Bretherick told Officer Samuels that she was interviewing job applicants and that she was having trouble conducting those interviews due to the noise Mr. Spingola was making. Ms. Bretherick also indicated that she wanted to make a citizen's arrest, and she filed a written statement to that effect later that day.

Officer Samuels then went out to the plaza and told Mr. Spingola that the campus police had received a second complaint. He notified the plaintiff that the complainant was willing to place him under citizen's arrest for disturbing the peace if Mr. Spingola did not stop shouting. Mr. Spingola refused to stop. Officer Samuels then advised the plaintiff that he was going to have to place him under arrest pursuant to California Penal Code section 415(2) for disturbing the peace, but he told Mr. Spingola that he would rather cite and release him than take him to jail. Mr. Spingola refused several times to sign the citation, so Officer Samuels arrested him and took to the Berkeley City Jail.

II. UC-BERKELEY'S SPEECH REGULATIONS

In 1994, UC-Berkeley issued time, place, and manner restrictions on expressive activity on campus. The general speech provisions indicate that persons on University property must not "obstruct or disrupt campus activities; engage in the production of amplified or non-amplified sound that disrupts campus activities; . . . [or] participate in a disturbance of the peace or unlawful assembly . . ." Smith Decl., Sept. 29, 2000, Ex. A, § 321 (containing the Berkeley Campus Regulations Implementing University Policies).

The regulations governing Sproul Plaza indicate that the plaza is open from 6:00 a.m. to 12:00 a.m. During those hours, the plaza "may be used without reservation for discussion or public expression which does not require or involve sound amplification equipment." Id. § 331. Sound amplification is permitted for authorized events at Sproul Hall between noon and 1:00 p.m. and 5:00 p.m. and 7:00 p.m., with some exceptions not relevant here. See id. § 342. The regulations also note, however, that "use of these areas for discussion or public expression may be limited when such use interferes with the orderly conduct of University business or authorized events." Id. § 331.

III. PROCEDURAL HISTORY

On January 25, 1999, Mr. Spingola filed suit in state court for his arrest. The plaintiff listed several causes of action in his state court complaint, combining state-law and federal-law claims. The plaintiff's federal-law claims allege that: (1) Officer Samuels violated his First Amendment free speech rights; and (2) Officer Samuels violated his Fourth Amendment protection against arrests performed without probable cause. As a result, Mr. Spingola has requested damages from Officer Samuels in his official and individual capacities and from the Regents of the University of California ("the Regents") under 42 U.S.C. § 1983. The plaintiffs state-law claims include that: (1) Officer Samuels violated his free speech rights under the California Constitution, entitling Mr. Spingola to damages under California Civil Code section 52.1; (2) Officer Samuels violated Mr. Spingola's right against false arrest and imprisonment; and (3) Officer Samuels violated the plaintiffs right to be free from violence and intimidation under Civil Code section 51.7. The defendants removed the dispute to this Court on March 8, 1999.

DISCUSSION

The defendants have moved for summary judgment or partial summary judgment on seven separate grounds. Those arguments can also be divided based on whether they arise out of federal law or state law. In response to the plaintiffs federal-law claims, the defendants have argued that: (1) Officer Samuels is not liable in his individual capacity for violating Mr. Spingola's Fourth Amendment rights; (2) Officer Samuels is not liable in his individual capacity for violating Mr. Spingola's First Amendment rights; and (3) the Regents and Officer Samuels in his official capacity are immune from the plaintiffs claim for damages pursuant to the Eleventh Amendment.

In response to Mr. Spingola's state-law claims, the defendants have argued that: (I) the defendants are immune from liability for false arrest or false imprisonment pursuant to California Penal Code section 847 and California Government Code section 815.2(b); (2) the defendants did not violate the plaintiffs right to free speech under the California Constitution; (3) the plaintiff has not stated a claim for violation of free speech rights under California Civil Code sections 52.1 or 51.7; and (4) the defendants are entitled to immunity pursuant to Government Code sections 820.2 and 815.2(b).

I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT

Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. See id. at 248. "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S.317, 323-24 (1986).

The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact. See id. at 323. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See id. Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56 (e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995), and noting that it is not a district court's task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 323.

II. THE PLAINTIFF'S FEDERAL-LAW CLAIMS

The defendants have moved for summary judgment on Mr. Spingola's federal law claims on three grounds. First, the defendants assert that the plaintiffs claim for damages against the Regents and Officer Samuels in his official capacity is barred by the Eleventh Amendment. Second, the defendants contend that the plaintiff cannot succeed in his First Amendment claim against Officer Samuels in his individual capacity since no First Amendment violation occurred and Officer Samuels is entitled to qualified immunity. Third, the defendants argue that the plaintiffs Fourth Amendment claim against Officer Samuels in his individual capacity will fail because Officer Samuels was required by law to make the arrest, and because Officer Samuels is entitled to qualified immunity.

A. The Plaintiff's Claim for Damages Against the Regents and Officer Samuels in his Official Capacity

The defendants observe correctly that states are immune to claims seeking damages in federal court pursuant to the Eleventh Amendment. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985); Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985). The University of California and the Board of Regents are considered instrumentalities tthe state and therefore enjoy Eleventh Amendment immunity. See BV Engineering v. University of California Los Angeles, 858 F.2d 1394, 1395 (9th Cir. 1988); Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982). Eleventh Amendment immunity also extends to state officials in their official capacity. See Graham, 473 U.S. at 165-68 (holding that official capacity suits are effectively suits against the entity that the individual represents). Accordingly, the plaintiff cannot seek damages from the Regents or from Officer Samuels in his official capacity in federal court under either federal or state law. See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (holding that the Eleventh Amendment bars plaintiffs from suing states in federal court for violations of state law).

The plaintiff does not dispute that the Regents and Officer Samuels in his official capacity are immune from damage claims under the Eleventh Amendment. Instead, citing California Mother Infant Program v. California Dep't of Corrections, 41 F. Supp.2d 1123 (S.D. Cal. 1999), the plaintiff argues that the defendants have waived their immunity by removing this suit to federal court. In California Mother Infant Program ("CMIP"), the court held that remand was inappropriate where the state removed the case and the Eleventh Amendment would bar the only claim upon which removal was premised. See CMIP, 41 F. Supp.2d at 1127. Under such circumstances, the court concluded, the state has effectively waived its sovereign immunity by removing to federal court and opposing a plaintiffs efforts to remand to state court. See id. at 1129.

The parties have not presented the Eleventh Amendment waiver issue very clearly. Some of the confusion in the parties' papers may be due to the defendants' misunderstanding regarding the scope of the Eleventh Amendment. For some reason, the defendants have presented their Eleventh Amendment defense as barring only the plaintiffs section 1983 claims against the Regents or Officer Samuels in his official capacity; the state has not argued that sovereign immunity bars the plaintiffs state-law claims against the state. In fact, sovereign immunity prevents a citizen of a state from suing the state in federal court under either federal-law or state-law claims. See Pennhurst, 465 U.S. at 106 (holding that a citizen may not sue a state in federal court for violations of state law); id. ("[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment."). If the state has not waived its sovereign immunity, then, none of the plaintiffs claims can proceed against the Regents or Officer Samuels in his official capacity in federal court. CMIP is inapposite for three reasons. First, CMIP was "issued prior to recent decisions in which the Supreme Court has articulated an expanded conception of state sovereign immunity." Watkins v. California Dep't of Corrections, 100 F. Supp.2d 1227, 1231 n. 5 (C.D. Cal. 2000) (citing Alden v. Maine, 527 U.S. 706 (1999), and College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999)). As a result, its pertinence must be viewed critically.

Second, CMIP can be distinguished on its facts since Mr. Spingola's suit includes federal-law claims that are not precluded by the Eleventh Amendment. In CMIP, the Eleventh Amendment barred the only claim upon which removal was based (a section 191 claim against the California Department of Corrections), whereas here the plaintiff has also sued Officer Samuels in his individual capacity under section 1983, a claim that is not bared by the Eleventh Amendment. In CMIP, it seemed that the state defendant had removed simply so that it could litigate the plaintiffs state-law claims in federal court. Here, it does not necessarily appear that the defendants removed merely to litigate the plaintiffs state-law claims in a federal forum. Instead, the defendants may have removed the action to this Court 50 that the plaintiffs federal-law claims could be adjudicated in a federal forum.

Third, and most importantly, the state's conduct here does not demonstrate an unambiguous intent to waive immunity because the state has not previously litigated the merits of its case before this summary judgment motion. As the CMIP court noted, the Supreme Court has been extremely reluctant to find that a state has waived its sovereign immunity absent express language or "overwhelming implications" that leave "no room for any other reasonable construction." Id. at 1128 (quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974)); see Atascadero, 473 U.S. at 241 (noting that the California Constitution does not contain "an unequivocal waiver specifically applicable to federal-court jurisdiction").

Courts have occasionally overcome this reluctance to find that a state has waived its immunity without an express indication in certain limited circumstances. For instance, the Ninth Circuit has observed that a state may waive its sovereign immunity by its conduct during litigation, such as when a state waits until after some proceedings on the merits (e.g., until a day before trial) to raise an Eleventh Amendment defense. See Hill v. Blind Indus., and Servs. of Maryland, 179 F.3d 754, 759 (9th Cir. 1999) (noting that the state's conduct in waiting until a day before trial to assert sovereign immunity "clearly manifests acceptance of the federal court's jurisdiction" or was at least "incompatible with an assertion of Eleventh Amendment immunity"); id. at 757 ("A party may gain an improper advantage through this tactic even without waiting until the first day of trial. The ruling on a motiEim for summary judgment, or on pre-trial matters such as motions in limine, can signal the probable outcome of the case.").

However, where the state has raised its sovereign immunity from the beginning of the litigation and before other proceedings on the merits, as the defendants have done here, the state cannot be deemed as having waived its Eleventh Amendment immunity by its conduct See In re Mitchell, 209 F.3d 1111, 1118 (9th Cir. 2000) (distinguishing Hill where the state asserted immunity less than one month after the first amended complaint was filed and gained no procedural advantage by asserting immunity when it did).

A recent case from the U.S. District Court for the Central District of California is especially instructive. In Watkins v. California Dep't of Corrections, 100 F. Supp.2d 1227, 1230 (C.D. Cal. 2000), the court faced the identical procedural posture as the present dispute. A plaintiff with both federal-law and state-law claims filed suit in state court against a California government agency and several of its employees. The state removed to federal court on the grounds that the plaintiffs section 1983 claim presented a federal question, and then asserted immunity under the Eleventh Amendment. In the meantime, the plaintiff amended his complaint to delete the section 1983 claim and replace it with a Title VII racial discrimination claim. See Watkins, 100 F. Supp.2d at 1228.

The plaintiff countered the defendants' assertion of sovereign immunity by arguing that the state waived its Eleventh Amendment rights as to all of the plaintiff's claims by voluntarily removing the action to federal court. The Watkins court disagreed, noting that "relevant case law makes it clear that in determining whether a state has "voluntari1y invoked the jurisdiction' of a federal court, the most important factor to consider is whether the state has actively litigated the merits of its case before the federal tribunal." Id. at 1230. The court indicated that whether a state has litigated the merits of a plaintiffs claim is significant because it sheds light on whether the state is raising its Eleventh Amendment defense in a legitimate effort to protect its sovereignty or merely to "obtain an improper tactical advantage" by seeing if it is satisfied with the results of the proceedings. Id. at 1231 (noting that a state that litigates the merits of a claim and then raises immunity has made "unfair offensive use of its Eleventh Amendment shield").

The Watkins court held that merely removing an action to federal court — particularly where some of the plaintiff's federal-law claims are not subject to an immunity defense — does not unmistakably indicate that the state has waived its sovereign immunity. Instead, it is possible that the state wanted the plaintiffs federal-law claims to be adjudicated in federal court. The Watkins court concluded:

[T]he act of removing a case to a federal forum does not automatically waive a state's Eleventh Amendment immunity with respect to all of the claims in the case. Where the state has removed a case to federal court in order to ensure that the federal-law claims in the case are adjudicated by a federal tribunal, but has all the while made clear its intention to assert sovereign immunity as to the other, state-law claims, the state has not unequivocally indicated its consent to have the state-law claims adjudicated in a federal forum. Nor has the state been guilty of the kind of abusive tactical maneuvering that would make it proper for a court to find an "implied' waiver of immunity with respect to the state-law claims.

Here, the Court concludes that the state has not automatically waived its sovereign immunity by removing Mr. Spingola's case. The state has not engaged in impermissible tactical maneuvering in an effort to have the plaintiffs state-law claims adjudicated here or to see how this Court is inclined to rule on the merits before asserting an immunity defense. The present motion is the first proceeding involving the merits of the plaintiffs case, and the state has raised its Eleventh Amendment defense even in case management statements. The state's conduct does not unequivocally indicate that the state has consented to have all of Mr. Spingola's claims heard in a federal forum. Instead, it is equally possible that the state's conduct merely indicates a desire to have Mr. Spingola's federal-law claims (such as the federal-law question of qualified immunity) adjudicated here.

Accordingly, this Court cannot find that the state has unambiguously waived its Eleventh Amendment defense. As a result, the plaintiff cannot seek damages from the Regents or from Officer Samuels in his official capacity in federal court for either the plaintiff's federal or state-law claims. The defendants' motion for summary judgment is therefore GRANTED IN PART as to the plaintiffs claims for damages against the Regents and Officer Samuels in his official capacity.

B. The Plaintiff's First Amendment Claim Against Officer Samuels in his Individual Capacity

The defendants argue that the plaintiff cannot show that Officer Samuels violated his First Amendment rights, and that even if Mr. Spingola's rights were violated, Officer Samuels is entitled to qualified immunity. A determination that Officer Samuels is entitled to qualified immunity would make it unnecessary to decide whether Mr. Spingola's First Amendment rights were violated, so the Court will analyze Officer Samuels' qualified immunity defense first.

1. Officer Samuels' Assertion of Qualified Immunity

In evaluating a qualified immunity claim, the Court must perform a three-step analysis. See Kelley v. Borg, 60 F.3d 664, 666 (9th Cir 995) (citing Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991)). First, the Court must determine whether the plaintiff has alleged the deprivation of an actual constitutional right. See Wilson v. Layne, 526 U.S. 603, 609 (1999). If he has, the Court must then determine whether that right was clearly established. See id. If the right was clearly established at the time of the defendants' actions, then the Court must consider whether a reasonable official in the defendants' position could have believed that his conduct was lawful. See DeBoer v. Pennington, 206 F.3d 857, 864 (9th Cir. 2000); id. at 867 (observing that "[t]he inquiry is whether in light of the totality of the circumstances the defendants' actions were "objectively reasonable'"). The first two inquiries — whether an actual right was violated and whether that right was clearly established — typically present purely legal questions, but the third may require some factual determinations as well. See Romero, 931 F.3d at 628. "The determination of whether a reasonable officer could have believed his conduct was lawful given the totality of the circumstances is a determination of law that can be decided on summary judgment if the material facts are undisputed."Collins v. Jordan, 110 F.3d 1363, 1369 (9th Cir. 1999). It is a defendant's burden to show that a reasonable officer could have believed that his conduct was lawful. See id. at 1369.

The plaintiff has alleged the violation of an actual constitutional right that was clearly established as of January 1998. Under Ward v. Rock Against Racism, 491 U.S. 781 (1989), a time, place, or manner restriction on speech — such as UC-Berkeley's restrictions on speech in Sproul Plaza — is permissible only if it: (1) is content neutral; (2) is narrowly tailored to serve a significant governmental interest; and (3) leaves open ample alternative channels for the communication of the plaintiffs message. See Ward, 491 U.S. at 791. Thus, Mr. Spingola had a clearly established right to speak subject to reasonable time, place, or manner restrictions on his speech.

The final qualified immunity issue is whether a reasonable officer in Officer Samuels' position could believe that his conduct was lawful. In other words, a reasonable officer must have been able to believe that the UC-Berkeley regulations and the arrest of Mr. Spingola for violating Penal Code section 415 comported with the Ward test for time, place, or manner restrictions. If the material facts are undisputed, it is appropriate for this Court to decide the qualified immunity issue on summary judgment.

Here, a reasonable officer could believe that his conduct — arresting Mr. Spingola pursuant to a citizen's complaint for disrupting University business — was lawful. The speech regulations are silent as to the content of a person's speech, and there is no evidence in the record that suggests that Officer Samuels or UC-Berkeley applied the regulations in a content-based manner in Mr. Spingola's arrest. Moreover, the restrictions are designed to preserve UC-Berkeley's significant interest in ensuring that its educational business can be pursued without unnecessary distractions.

In addition, a reasonable officer in the defendant's position could have believed that the regulations — and the means by which Officer Samuels enforced them — were narrowly tailored to advance UC-Berkeley's interests. The regulations do not prohibit all speech in Sproul Plaza; they only enable UC-Berkeley to limit speech when the public expression interferes with University business. Moreover, Officer Samuels waited to arrest Mr. Spingola until Ms. Bretherick made two noise complaints to the campus police and indicated that she was willing to effectuate a citizen's arrest. Rather than arrest Mr. Spingola immediately upon receiving the first complaint, Officer Samuels warned Mr. Spingola to lower his voice or risk arrest pending another complaint. Officer Samuels also went to Ms. Bretherick's office to see whether Mr. Spingola was truly disturbing her. Thus, Officer Samuels' conduct suggests that the regulations were not enforced so as to curtail substantially more speech than necessary to protect UC-Berkeley's interests. Under those circumstances, a reasonable officer could believe that the regulations were narrowly tailored to serve the University's interests.

Finally, a reasonable officer could also believe that the regulations provided the plaintiff with ample alternative channels for communicating his ideas. The policies permit amplified speech during the lunch hour and non-amplified speech during other hours so long as the expressive activity does not interfere with the orderly conduct of University business. Mr. Spingola could have used an amplification device from 12:00 p.m. to 1:00 p.m. and 5:00 p.m. to 7:00 p.m., he could have moved to another area of the University, and he could have lowered his voice so that he was not disturbing University employees. Any of those alternatives would have enabled Mr. Spingola to avoid arrest for disturbing the peace under Penal Code section 415(2).

Thus, a reasonable officer in Officer Samuels' position could have believed that his conduct was lawful, and Officer Samuels is entitled to qualified immunity in his individual capacity as to the plaintiffs section 1983 claim asserting a violation of his First Amendment rights. The defendants' motion for summary judgment is accordingly GRANTED IN PART as to Officer Samuels' qualified immunity for the alleged First Amendment violation.

2. The Merits of the Plaintiff's First Amendment Claim

Because the Court has determined that Officer Samuels is entitled to qualified immunity as to the alleged First Amendment violation, it need not express any opinion as to whether the defendants actually violated Mr. Spingola's First Amendment rights.

C. The Plaintiff's Fourth Amendment Claim Against Officer Samuels in his Individual Capacity

As with the plaintiffs First Amendment claim, the defendants have countered Mr. Spingola's Fourth Amendment claim by arguing that Officer Samuels is entitled to qualified immunity and that the defendants did not violate Mr. Spingola's Fourth Amendment rights. Again, because a determination that Officer Samuels is entitled to qualified immunity would render a decision regarding whether the defendants violated Mr. Spingola's Fourth Amendment rights unnecessary, the Court will begin with the qualified immunity issue.

1. Officer Samuels' Assertion of Qualified Immunity

The defendants argue that Officer Samuels was required to arrest the plaintiff under Penal Code section 142(a), which provides that a peace officer "who has the authority to receive or arrest a person charged with a criminal offense" is subject to imprisonment or a fine if the officer refuses to arrest the person. Cal. Penal Code § 142(a) (West 2000). Citing Kinney v. County of Contra Costa, 8 Cal.App.3d 761. 768 (1970), the defendants also argue that a peace officer who arrests a person subject to a citizen's arrest has no obligation to determine whether or not the citizen making the arrest had probable cause. The plaintiff asserts that Officer Samuels' arrest of Mr. Spingola was not a citizen's arrest because he did not assume custody of Mr. Spingola from Ms. Bretherick, and that the officer therefore must have had probable cause to arrest the plaintiff under the Fourth Amendment.

As the Court indicated at oral argument, it is skeptical about the defendants' claims that the arrest was merely a citizen's arrest, thatKinney is relevant to the present case, and that Officer Samuels was therefore required to arrest Mr. Spingola. However, the Court need not resolve whether Officer Samuels' arrest of Mr. Spingola was a citizen's arrest or whether Officer Samuels was legally required to take Mr. Spingola into custody. For purposes of this order, the Court will assume that the arrest was not a citizen's arrest and that Officer Samuels had to have probable cause pursuant to the Fourth Amendment.

The Court finds that a reasonable officer in Officer Samuels' position could have believed that he had probable cause to arrest the plaintiff under Penal Code section 415(2) for disturbing the peace and that the arrest was therefore lawful. After Ms. Bretherick's first complaint, Officer Samuels warned the plaintiff that the campus police had received complaints about his preaching, and he asked Mr. Spingola to lower the volume of his voice or face arrest for disturbing the peace. After the second complaint, Officer Samuels went to Ms. Bretherick's office to verify that she could hear the plaintiff through her windows. Combined with Ms. Bretherick's representation that Mr. Spingola's preaching was interfering with her ability to conduct University business, a reasonable officer in Officer Samuels' position could believe that he had probable cause to conclude that the plaintiffs preaching was in fact disturbing the peace. The plaintiffs citation of In re Brown, 9 Cal.3d 612 (1973), is not persuasive, since that decision recognized that reasonable time, place, or manner restrictions on speech are permissible. See In re Brown, 9 Cal.3d at 620.

Indeed, Officer Samuels did not just have probable cause to believe that Mr. Spingola was disturbing the peace; he personally observed the plaintiff speaking loudly on two separate occasions, thereby observing the plaintiff in the act of committing the offense. Under those circumstances, a reasonable officer in Officer Samuels' position could believe that he had probable cause to arrest Mr. Spingola for disturbing the peace under Penal Code 16 section 415. See Mann v. Mack, 155 Cal.App.3d 666, 674 (1984) (finding that an officer had probable cause to arrest persons for violating section 415 when one of the persons admitted to the officer that he was playing loud music inside his garage); id. (observing that Penal Code section 836(a)(1) authorizes an officer to arrest a person without a warrant if the officer "has probable cause to believe that the person to be arrested has committed a public offense in the officer's presence").

The plaintiff has argued that his voice was only "as loud as was necessary to address the crowd" and "for the furthest interested person to hear him." Plaintiffs Memorandum of Points and Authorities in Opposition to Summary Judgment, Oct. 27, 2000, at 8 (labeling the volume of the plaintiffs voice as "the quintessential question of fact"). The plaintiff asserts that this dispute precludes summary judgment. However, the plaintiff has not disputed Officer Samuels' testimony that he could hear Mr. Spingola through the windows in Ms. Bretherick's office. Moreover, the plaintiff conceded in his deposition that he was speaking loudly. See Wolan Decl., Sept. 29, 2000, Ex. B, at 89-90 (containing excerpts of Mr. Spingola's deposition). Under those circumstances, a reasonable officer could believe that Mr. Spingola was being loud enough to disturb the peace and that the officer therefore had probable cause to arrest him under Penal Code section 415. Whether the plaintiff felt that the volume of his voice was excessive does not change that legal conclusion.

Accordingly, a reasonable officer in Officer Samuels' position could have believed his conduct his conduct was lawful, and Officer Samuels cannot be sued in his individual capacity. The defendants' motion for summary judgment is GRANTED IN PART to the extent that Officer Samuels is entitled to qualified immunity as to the plaintiffs Fourth Amendment claim.

2. The Merits of the Plaintiff's Fourth Amendment Claim

Because the Court has determined that Officer Samuels is entitled to qualified immunity as to the plaintiffs Fourth Amendment claim, it need not reach whether Mr. Spingola's Fourth Amendment rights were in fact violated.

D. Conclusion Regarding the Plaintiff's Federal-Law Claims

Because the Regents and Officer Samuels in his official capacity are entitled to Eleventh Amendment immunity in federal court (both as to the plaintiffs federal-law and state-law claims), and because Officer Samuels is entitled to qualified immunity in his individual capacity against the plaintiffs First and Fourth Amendment claims, the defendants are entitled to summary judgment on the plaintiffs section 1983 claims. Accordingly, the defendants' motion for summary judgment is GRANTED IN PART as to the plaintiffs request for damages under section 1983 for violations of the First and Fourth Amendment.

III. THE PLAINTiFF'S STATE-LAW CLAIMS

Because this Court grants summary judgment to the defendants on the plaintiffs federal-law claims, only Mr. Spingola's state-law claims remain. Under the supplemental jurisdiction statute, a district court may decline to exercise supplemental jurisdiction over a claim either when the state law claim substantially predominates over the federal-law claims or when the court has dismissed all the claims over which it has original jurisdiction. See 28 U.S.C. § 1367 (c)(2) (3). It is not an abuse of discretion to remand remaining state-law claims when federal-law claims have been resolved. See Patel v. Penman, 103 F.3d 868, 878 (9th Cir. 1996) (holding that a district court's refusal to exercise supplemental jurisdiction was not an abuse of discretion).

In fact, although a district court is not required to remand remaining state-law claims, the U.S. Court of Appeals for the Ninth Circuit has indicated that a district court ordinarily should not exercise supplemental jurisdiction over a plaintiffs state-law claims when the court has dismissed the plaintiffs federal-law claims before trial. See Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) ("The Supreme Court has stated, and we have often repeated, that "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.'") (citingCarnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)); Gamboa v. Rubin, 80 F.3d 1338, 1350 (9th Cir. 1996) (directing a district court to remand stale-law claims to state court after resolving the Eleventh Amendment issue); Watkins, 100 F. Supp.2d at 1232 ("[I]t is well-settled that the preferable course of action is to remand those claims barred by the Eleventh Amendment to the state court from which they were removed."). Accordingly, this Court declines to exercise supplemental jurisdiction over the plaintiffs remaining state-law claims, and hereby REMANDS those claims to state court.

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is GRANTED IN PART as to the plaintiffs section 1983 claims that Officer Samuels violated his First and Fourth Amendment rights. The Court declines to exercise supplemental jurisdiction over the plaintiffs remaining state-law claims and hereby REMANDS those claims to the state court in which they were originally filed.

IT IS SO ORDERED.