McCormick v. City of Lawrence ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 24, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DALE E. MCCORMICK; CURTIS A.
KASTL, II,
Plaintiffs - Appellants,
v. No. 04-3279
(D.C. No. 03-CV-2195-GTV)
CITY OF LAWRENCE, KANSAS; (D. Kan.)
MIK SHANKS; SCOTT HOFER;
WARREN BURKET; JUSTIN
STIPANOVICH; DEAN BROWN;
MIKE PATTRICK; KIRK FULTZ;
MARK KNIGHT; LEO SOUDERS;
JAMES WHITE; RON OLIN, Police
Chief,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HENRY , ANDERSON, and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiffs Dale E. McCormick and Curtis A. Kastl, II, appeal the dismissal
of their suit under 42 U.S.C. § 1983 against the City of Lawrence, Kansas; the
police chief; several police officers; and an assistant district attorney. The
district court resolved the case in a series of detailed and thoughtful orders,
dismissing certain claims and entering summary judgment on others. After
construing the parties’ filings liberally and reviewing the district court’s orders de
novo , we affirm. See Santana v. City of Tulsa , 359 F.3d 1241, 1243 (10th Cir.
2004) (stating that this court applies de novo review to a district court’s grant of
summary judgment and Rule 12(b)(6) motions); Haines v. Kerner , 404 U.S. 519,
520-21 (1972) (requiring liberal construction of pro see pleadings).
Background
Plaintiffs consider themselves to be “constitutional rights activists and
vocal critics of the Lawrence, Ks., police department.” Aplt. Br. at 1. They
assert that one or both of them have verbally protested police activity on
approximately fifty occasions. They recorded their protests of officers’
conducting a sobriety checkpoint on June 28, 2002, and a traffic stop on July 13,
2002. As a result of their activities, plaintiffs allege that police officers have
retaliated by threatening plaintiffs with arrest, charging them with crimes,
-2-
attacking them, searching their video and audio recording devices, and destroying
tapes.
The district court dismissed plaintiffs’ claims of unreasonable search and
seizure against police officers and malicious prosecution against an assistant
district attorney. McCormick v. City of Lawrence , 289 F. Supp. 2d 1264, 1268-69
(D. Kan. 2003) (dismissing unreasonable search and seizure claims on qualified
immunity grounds); McCormick v. City of Lawrence , No. Civ. A 03-2195-GTV,
2003 WL 22466188, *6 (D. Kan. Aug. 14, 2003) (dismissing assistant district
attorney based on prosecutorial immunity).
Later, it entered summary judgment on plaintiffs’ remaining claims.
McCormick v. City of Lawrence , 325 F. Supp. 2d 1191 (D. Kan. 2004). The court
determined that plaintiffs’ allegations did not meet the pattern or injury
requirements of the Racketeer Influenced and Corrupt Organizations Act (RICO),
18 U.S.C. §§ 1961-1968. Id. at 1208-09. It also decided defendants were entitled
to qualified immunity on plaintiffs’ constitutional claims. The First Amendment
claims failed because plaintiffs’ resort to personal epithets meant that they were
“engaged in ‘fighting words,’ rather than protected speech.” Id. at 1201(citing
Cohen v. California , 403 U.S. 15, 20 (1971); Chaplinsky v. New Hampshire , 315
U.S. 568, 572 (1942)); see also id. at 1207. Concerning plaintiffs’ claim that
defendants destroyed some of their audio and video tapes, the court concluded
-3-
that destruction of recordings was not a clearly established First Amendment
violation. Id. at 1203-04, 1205-06. As to the Fourth Amendment claims, the
officers had probable cause to arrest and search plaintiffs, as well as search and
seize their recording devices, based on a probable violation of a city ordinance
prohibiting interference with an officer’s carrying out an official duty. Id. at
1204-05. Moreover, the officer’s “use of force was reasonable and commensurate
with the resistance offered by Plaintiff McCormick,” so there was no exercise of
excessive force. Id. at 1205. Because plaintiffs failed to show constitutional
violations on the part of police officers, the claims against the police chief and
the municipality were dismissed as a matter of law. Id. at 1209. Having
disposed of all of plaintiffs’ federal claims, the court declined to exercise
supplement jurisdiction over their state law claims. Id. at 1206.
On appeal, plaintiffs argue that the district court erred in dismissing the
unreasonable search of property and malicious prosecution claims. They also
assert that summary judgment was improper because their verbal protests were
“unequivocally cloaked in ‘special protection’ by the First Amendment, that such
protection has been ‘clearly established’ for decades, and that no reasonable
officer could perceive otherwise.” Aplt. Br. at 16.
Having reviewed the briefs, the record, and the applicable law, we conclude
that the district court correctly decided this case. We therefore AFFIRM the
-4-
judgment for substantially the same reasons stated by the district court in
McCormick v. City of Lawrence , 289 F. Supp. 2d 1264; McCormick v. City of
Lawrence , No. Civ. A 03-2195-GTV, 2003 WL 22466188; and McCormick v. City
of Lawrence , 325 F. Supp. 2d 1191.
Entered for the Court
Michael R. Murphy
Circuit Judge
-5-