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Civil Rights: 42 U.S.C. § 1983 Claim for Violation of First Amendment

Posted by Ted A. Schmidt | Dec 16, 2021 | 0 Comments

Saved Magazine v. Spokane Police Dept., No. 20-36073 (9th Cir., December 9, 2021) (J.Smith)

Police escorting reporter out of protest zone possibly implicating plaintiff's first amendment rights does not rise to a violation of 42 U.S.C. § 1983 civil rights


The Spokane Public Library hosted a children's book reading event called “Drag Queen Story Hour.” 150 protestors and 300 counter-protestors showed up. Police separated them into two groups. Plaintiff showed up to report the event for Saved Magazine. He received a police escort into the midst of the counter-protestors for interviews. Plaintiff began interviewing one of the counter-protestors when the interviewee began questioning the plaintiff as to whether he had previously advocated for the execution of gay people. What looked more like a debate than an interview ensued.  The police escort decided the interview was digressing into proselytizing by the plaintiff and escorted him out of the group. 


Plaintiff filed an amended complaint under 42 U.S.C. § 1983 seeking declaratory relief for violations of his First Amendment rights, and a parallel claim under the Washington State Constitution. The Federal District Court dismissed the action and United States Court of Appeals for the Ninth Circuit affirmed.


Government officials have qualified immunity from exposure to civil damages  when performing “discretionary function” provided  their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” A two prong test is applied when police officers seek this qualified immunity: the court asks “(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.”  Plaintiffs suit fails under the second prong. 


Plaintiffs do not challenge a city ordinance or permit scheme,

and they expressly do not challenge the Spokane Police

Department's use of separate protest zones. Instead, Plaintiffs'

Challenge is directed at Officer Doe's enforcement of these

zones. We are not aware of any precedent that would alert

Officer Doe that his enforcement would violate clearly

established First Amendment law. . . . Considering the

lack of any precedent to the contrary, 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



Finally, plaintiffs' claim under Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978) also fails. Monell holds that a § 1983 may be supported by violation of a government policy, custom or practice. “The City of Spokane cannot be held liable because even assuming Spokane police officers violated Yaghtin's First Amendment rights, nothing in the complaint plausibly alleges a policy, custom, or practice leading to that violation.”

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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