In Saved Magazine v. Spokane Police Department,[1] the Ninth Circuit Court of Appeals determined that an officer was entitled to qualified immunity because the Court was unaware of any precedent that would alert an officer that his enforcement of separate protest zones would violate clearly established First Amendment law.  In reaching its conclusion, the Court found it was not unreasonable for the officer to believe that it was lawful for him to examine the substance of a plaintiff journalist’s speech in order to enforce the separate protest zone policy.

Background

In June 2019, the Spokane Public Library hosted a children’s book reading event called “Drag Queen Story Hour.”  The event generated controversy.  Near the library, the police separated 150 protesters and 300 counter-protesters into separate protest and counter-protest zones.  Afshin Yaghtin, the chief editor of and a journalist for Saved Magazine, arrived at the event wearing a press badge and identified himself to police officers as a member of the press.  Yaghtin stated that he intended to interview protesters and counter-protesters for his upcoming story.  Spokane Police Officer Vaughn acknowledged Yaghtin’s claim that he was a member of the press and escorted him to the entrance of the library.

Officer Vaughn then warned Yaghtin that he would be subject to arrest if he started “engaging people” or caused “a problem,” but told Yaghtin if he wanted to “act as the press and report on [the event], you can do that.”  Yaghtin walked to the sidewalk outside the library to interview counter-protesters.  While Yaghtin was walking through the counter-protest zone, a counter-protester asked whether he was the person that had previously advocated for the execution of gay people.  Yaghtin responded, “No that is what the Bible says . . .” and began to converse with the counter-protester.  Officer Doe interrupted the exchange, saying that Yaghtin was “engaging [the counter-protestor] on political topics . . . you need to act like the press and not try to take a political view.”  Yaghtin responded that he was not engaging anyone and asked if he needed “to go to the other side of the street.”  Officer Doe responded that he “did not say that.”  Officer Doe then escorted Yaghtin through the counter-protest zone.

In August 2020, Yaghtin and Saved Magazine (“Plaintiffs”) filed an amended complaint under 42 U.S.C. section 1983 against the Spokane Police Department, Spokane Police Chief Craig Meidl, and Officer Doe for, among other things, declaratory relief based on the First Amendment.  Plaintiffs contended that Spokane police officers violated their right to freedom of the press when Officer Doe monitored Yaghtin’s communications and intervened in a conversation between Yaghtin and the counter-protester.  Plaintiffs also alleged that the City of Spokane adopted the officers’ actions as policy.  The District Court dismissed the amended complaint with prejudice.  Yaghtin appealed.

Discussion

On appeal, Plaintiffs argued that the District Court erred in granting qualified immunity to Officer Doe because the law underpinning the alleged First Amendment violation was clearly established.  The Ninth Circuit Court of Appeals observed that when an officer claims qualified immunity, courts ask “(1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.”  Jessop v. City of Fresno, 936 F.3d 937, 940 (9th Cir. 2019) (quoting Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014)).  The Court added that “[a]ddressing the second prong before the first is especially appropriate where ‘a court will rather quickly and easily decide that there was no violation of clearly established law.’”  Id. (quoting Pearson v. Callahan, 555 U.S. 223, 239 (2009)).  The Ninth Circuit explained that the specific question here was whether the right asserted by Yaghtin was so “clearly established” that “a reasonable officer would have known that his conduct violated” that right?  Romero v. Kitsap County, 931 F.2d 624, 628 (9th Cir. 1991).

In Grossman, 33 F.3d 1200 (9th Cir. 1994), the Ninth Circuit had determined that although an ordinance enacted by the city council violated the First Amendment, an officer’s enforcement of that ordinance was not clearly unconstitutional.  The Court explained that law enforcement officers may generally reasonably assume that “policies or orders promulgated by those with superior authority” are constitutional unless those policies or orders are “patently violative of fundamental constitutional principles.”  Id. at 1209.  The officer was thus entitled to qualified immunity, as the ordinance “was not so obviously unconstitutional as to require a reasonable officer to refuse to enforce it.”  Id. at 1210.

In Kroll v. United States Capitol Police, 847 F.2d 899 (D.C. Cir. 1988), police officers allegedly violated a plaintiff’s First Amendment rights when they arrested him for protesting a ceremony without a permit.  The officers considered the content of the plaintiff’s message and determined that it conflicted with the spirit of the ceremony.  The D.C. Circuit nonetheless held that the officers were entitled to qualified immunity.  The D.C. Circuit found that the officers could have “reasonably believe[d] that they were enforcing a valid permit system,” and an officer could reasonably conclude that to enforce “a permit system inevitably requires taking cognizance of content.”  Id. at 901.  The D.C. Circuit explained that making judgments about “the message being conveyed by a particular demonstrator” is inherent to implementing a permit system.  Id.

The Ninth Circuit determined that Grossman and the reasoning in Kroll applied here.  Unlike in Grossman, the Court observed that Plaintiffs did not even allege that the underlying protest zone scheme was unconstitutional.  The Court noted that Plaintiffs did not challenge a city ordinance or permit scheme, and expressly did not challenge the Spokane Police Department’s use of separate protest zones.  Instead, Plaintiffs challenged Officer Doe’s enforcement of these zones.  The Court found that a reasonable person in Officer Doe’s position could have concluded that the Constitution permitted his relatively modest efforts to prevent Yaghtin from provoking counter-protestors in their designated zone, even if his actions involved restricting Yaghtin’s speech.  Moreover, unlike the officers in Kroll, Officer Doe did not arrest Yaghtin when the officer determined that Yaghtin’s speech was contrary to the purpose of the counter-protestor zone and prevented him from continuing to engage on those topics.  The Court of Appeals was not aware of any precedent that would alert Officer Doe that his enforcement would violate clearly established First Amendment law, and found it was not unreasonable for Officer Doe to believe that it was lawful for him to examine the substance of Yaghtin’s speech in order to enforce the separate protest zone policy.  The Ninth Circuit therefore concluded that Officer Doe was entitled to qualified immunity.

The Court also held that the City of Spokane could not be held liable under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) because even assuming Spokane police officers violated Yaghtin’s First Amendment rights, nothing in the complaint plausibly alleged a policy, custom, or practice leading to that violation.  Plaintiffs’ allegations thus amounted to no more than an “isolated or sporadic incident” that could not form the basis of liability under Monell.  Because the Court concluded that Officer Doe was entitled to qualified immunity and Plaintiffs had not established Monell liability, the Ninth Circuit Court of Appeals accordingly affirmed.

HOW THIS AFFECTS YOUR AGENCY

The Ninth Circuit underscored the difference between a legislative act and the officer’s enforcement of that legislative act, as they pertain to assessing whether free speech has been unconstitutionally infringed for qualified immunity purposes.  Agencies will observe that the Court explained that law enforcement officers may generally reasonably assume that “policies or orders promulgated by those with superior authority” are constitutional unless those policies or orders are “patently violative of fundamental constitutional principles.”  Grossman, supra, 33 F. 3d 1200, 1209.  Moreover, the Court indicated that an officer’s enforcement of a legislative act such as a permit system or separate protestor zones “inevitably requires taking cognizance of content,” because such awareness is inherent to implementing such a system.  Kroll, supra, 847 F. 2d at p. 901.

As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 2021 U.S. App. LEXIS 36304 (9th Cir. Dec. 9, 2021).