Saved Magazine v. Spokane Police Dept., No. 20-36073 (9th Cir., December 9, 2021) (J.Smith) https://cdn.ca9.
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.”