Saved Magazine v. Spokane Police Department

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAVED MAGAZINE, a Washington No. 20-36073
limited liability company; AFSHIN
YAGHTIN, and the marital D.C. No.
community thereof; MARY FELL 2:20-cv-00024-
YAGHTIN, and the marital RMP
community thereof,
Plaintiffs-Appellants,
OPINION
v.
SPOKANE POLICE DEPARTMENT;
CRAIG N. MEIDL, in his official and
personal capacity; JANE DOE, and the
marital community thereof; JOHN
DOE, and the marital community
thereof,
Defendants-Appellees,
and
CITY OF SPOKANE, a municipal
corporation in and for the State of
Washington; SPOKANE PUBLIC
LIBRARY; KEVIN VAUGHN, and the
marital community thereof; JANE
DOE VAUGHN, and the marital
community,
Defendants.
2 SAVED MAGAZINE V. SPOKANE POLICE DEP’T
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted October 4, 2021
Seattle, Washington
Filed December 9, 2021
Before: A. WALLACE TASHIMA, MILAN D. SMITH,
JR., and JACQUELINE H. NGUYEN, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY *
Civil Rights
The panel affirmed the district court’s dismissal of an
action brought pursuant to 42 U.S.C. § 1983 by Afshin
Yaghtin and Saved Magazine alleging that Spokane police
officers violated plaintiffs’ First Amendment rights when
they prevented Yaghtin, acting as a journalist at a public
event, from “engaging in dialogue with a protester” under
threat of arrest.
In June 2019, the Spokane Public Library hosted a
children’s book reading event called “Drag Queen Story
Hour.” Because the library event proved controversial, the
police separated 150 protesters and 300 counterprotesters
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SAVED MAGAZINE V. SPOKANE POLICE DEP’T 3
into separate protest and counterprotest zones near the
library. Yaghtin arrived at the event wearing a press badge
and identified himself to police officers as a member of the
press. Yaghtin alleges he was assigned a police “detail” to
accompany him through a crowd of counterprotesters out of
concern that he was “fake press.” While Yaghtin was
walking through the counterprotest zone, he began to
converse with a counterprotester, who had asked him
whether he was the person that had previously advocated for
the execution of gay people. Officer Doe interrupted the
exchange, and then escorted Yaghtin through the
counterprotest zone.
The panel held that Officer Doe was entitled to qualified
immunity under the second prong of the qualified immunity
analysis, which asks whether the constitutional right was
clearly established at the time of defendant’s alleged
misconduct. The panel noted that plaintiffs did not challenge
a city ordinance or permit scheme, and they expressly did
not challenge the Spokane Police Department’s use of
separate protest zones. Instead, plaintiffs’ challenge was
directed at Officer Doe’s enforcement of these zones. The
panel was 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 policy.
The panel held that the City of Spokane could not be held
liable 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 amounted to
4 SAVED MAGAZINE V. SPOKANE POLICE DEP’T
no more than an “isolated or sporadic incident” that could
not form the basis of liability under Monell v. New York City
Department of Social Services, 436 U.S. 658 (1978).
COUNSEL
Kevin T. Snider (argued), Pacific Justice Institute,
Sacramento, California; Tracy Tribbett, Pacific Justice
Institute, Paco, Washington; for Plaintiff-Appellant.
Taki V. Flevaris (argued), Alanna Peterson, and Gregory J.
Wong, Pacifica Law Group, Seattle, Washington; Salvatore
J. Faggiano, Office of the City Attorney, Spokane,
Washington; for Defendants-Appellees.
SAVED MAGAZINE V. SPOKANE POLICE DEP’T 5
OPINION
M. SMITH, Circuit Judge:
Plaintiffs Afshin Yaghtin and Saved Magazine allege
that Spokane police officers violated their First Amendment
rights when they prevented Yaghtin, acting as a journalist at
a public event, from “engaging in dialogue with a protester”
under threat of arrest. We affirm the district court’s order
dismissing this case with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
I.
In June 2019, the Spokane Public Library hosted a
children’s book reading event called “Drag Queen Story
Hour.” The event proved controversial, so the police
separated approximately 150 protesters and 300
counterprotesters into separate protest and counterprotest
zones near the library. The protesters gathered to express
their “concern about the drag queens” and their opposition
to the library’s sponsoring the event. Counterprotesters
gathered in support of the event.
Yaghtin is both the chief editor of and a journalist for
Saved Magazine, and sought to cover the Drag Queen Story
Hour event for an edition of an upcoming quarterly
periodical. He arrived fifteen minutes before the event
began 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 counterprotesters 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.
6 SAVED MAGAZINE V. SPOKANE POLICE DEP’T
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.” An individual
accompanying Yaghtin then asked Officer Vaughn what
would happen if a counterprotester began attacking Yaghtin,
and Officer Vaughn replied, “the same thing applies to them,
if they are causing problems then they will go to jail.” 1
Officer Vaughn also warned Yaghtin that he might have
problems with counterprotesters “saying things because they
know you were arrested last week, so people are going to say
things.” 2
Yaghtin alleges he was assigned a police “detail” to
accompany him through a crowd of counterprotesters out of
concern that he was “fake press.” After speaking with
Yaghtin, Officer Vaughn alerted “all units” that the subject
who “was arrested last time is on scene with a press pass,
[and] will be allowed to move freely throughout the event on
1
On review, we treat as true facts alleged in the amended complaint,
including four videos depicting the underlying incident that the district
court held were incorporated by reference into the complaint. Plaintiffs
did not challenge the district court’s ruling on this issue, and do not try
to do so on appeal.
2
Plaintiffs’ amended complaint quotes from, and provides a
hyperlink to, a newspaper article with additional factual background
about the Drag Queen Story Hour event, which Defendants submitted as
an exhibit to their motion to dismiss. The article suggests that the book
reading event described in the amended complaint was the second of two
similar events, and that Yaghtin had been arrested during the first event.
The district court did not refer to this article, and we do not rely on any
facts therein for the disposition of this case, so it is unnecessary to
determine the extent to which the incorporation-by-reference doctrine
might apply. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988,
1002 (9th Cir. 2018).
SAVED MAGAZINE V. SPOKANE POLICE DEP’T 7
both sides, until he starts causing problems with either
group. He’s been warned if he does that, then he’s subject to
arrest.”
Yaghtin then walked to the sidewalk outside the library
to interview counterprotesters. While Yaghtin was walking
through the counterprotest zone, a counterprotester asked
him, “Aren’t you the one who advocated for execution of
gay people?” Yaghtin responded, “No that is what the Bible
says . . .” and began to converse with the counterprotester
until Officer Doe interrupted the exchange, saying:
Ok, you are not exercising your press rights.
If you want to report the story you can . . . it
is not your job to answer his questions . . .
you are engaging [the counterprotestor] on
political topics . . . you need to act like the
press and not try to take a political view . . .
you can’t preach the Bible to people . . . I
heard you say something about the Bible.
Yaghtin told Officer Doe that he was “asked a question” and
“was there to comply.” Yaghtin stated that he was “not
engaging . . . anyone today,” and only intended to “walk
through.” Yaghtin then asked Officer Doe if he needed “to
go to the other side of the street,” and Officer Doe responded
that he “did not say that.” Yaghtin indicated, “I’d like to go
through [the counterprotest zone] please,” and Officer Doe
directed counterprotesters to “get out of the way” and let
Yaghtin continue to move through the zone. After Yaghtin
walked through the counterprotest zone, he told Officer Doe
that he appreciated the protection.
A few days after the event, Yaghtin’s lawyer wrote to
Spokane Police Chief Meidl asking whether Officer
Vaughn’s telling Yaghtin that he would be subject to arrest
8 SAVED MAGAZINE V. SPOKANE POLICE DEP’T
if he engaged people or caused problems, represented “the
practices, policies, and official position” of the Spokane
Police Department. An Assistant City Attorney responded,
asking for any information that might show the police
interfering with Yaghtin’s press rights. Yaghtin’s counsel
sent the City Attorney two videos depicting the interaction
between the police officers and Yaghtin during the Drag
Queen Story Hour event. After further email exchanges, the
City Attorney told Yaghtin’s counsel that the city would
“review and evaluate what you have submitted” and
welcomed suggestions in the meantime to improve city
employee trainings.
II.
In January 2020, Plaintiffs filed a complaint against the
City of Spokane, the Spokane Police Department, Police
Chief Meidl, Officer Vaughn, and the Spokane Public
Library seeking declaratory and injunctive relief as well as
damages for violations of their First Amendment rights, and
a parallel claim under the Washington State Constitution.
The district court dismissed all claims against the Spokane
Library with prejudice, but dismissed the rest of the
complaint without prejudice, noting the lack of any grounds
for municipal liability and an inadequately pleaded First
Amendment claim.
In August 2020, Plaintiffs filed an amended complaint
against the Spokane Police Department, Police Chief Meidl,
and Officer Doe for declaratory relief based on the same
First Amendment and parallel Washington State
constitutional claims. 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 a
counterprotester. Plaintiffs also alleged that the City of
SAVED MAGAZINE V. SPOKANE POLICE DEP’T 9
Spokane adopted the officers’ actions as policy “through
silent acquiescence.”
In their amended complaint, Plaintiffs referred to police
body camera footage depicting the Drag Queen Story Hour
event, which Defendants included as exhibits in their motion
to dismiss. The district court considered these videos under
the incorporation-by-reference doctrine when dismissing the
amended complaint with prejudice. The district court found
that even “after receiving notice from the Court about the
deficiencies in the original Complaint,” Plaintiffs had not
alleged facts to show they were entitled to relief on “any of
the modified claims or theories” raised. Thus after
“exhaustive examination by the parties and the Court of the
Plaintiff Yaghtin’s brief and limited interaction with the
relevant law enforcement and City officials,” the district
court concluded that further amendments would be futile.
On appeal, Plaintiffs challenge the district court’s First
Amendment ruling and contend that the court erred in
granting qualified immunity to Officer Doe and in
dismissing their claims for lack of municipal liability.
Although Defendants raise the issue of whether the district
court abused its discretion in dismissing the complaint
without leave to amend, Plaintiffs do not challenge the
dismissal with prejudice in their opening or reply brief. We
do not exercise our discretion to address this issue, and
therefore it is waived on appeal. See In re Riverside Linden
Inv. Co., 945 F.2d 320, 324–25 (9th Cir. 1991). Plaintiffs
also do not appeal the district court’s ruling concerning their
claim based on the Washington State Constitution.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291 and
review de novo the district court’s dismissal for failure to
10 SAVED MAGAZINE V. SPOKANE POLICE DEP’T
state a claim. Okwu v. McKim, 682 F.3d 841, 844 (9th Cir.
2012) (citing AE ex rel. Hernandez v. County of Tulare,
666 F.3d 631, 636, 638 (9th Cir. 2012)). We review de novo
all constitutional rulings as well as grants or denials of
qualified immunity. See Fournier v. Sebelius, 718 F.3d
1110, 1117 (9th Cir. 2013) (constitutional rulings); Prison
Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005)
(qualified immunity).
ANALYSIS
I.
Plaintiffs first argue that the district court erred in
concluding that Officer Doe was entitled to qualified
immunity because the law underpinning the alleged First
Amendment violation was clearly established. Qualified
immunity “shields government officials performing
discretionary functions from liability for civil damages
‘insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.’” Scott v. Henrich, 39 F.3d 912,
914 (9th Cir. 1994) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). When an officer claims qualified
immunity, we 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)). Courts have discretion to decide which of the two
prongs “should be addressed first in light of the
circumstances in the particular case at hand.” Pearson v.
Callahan, 555 U.S. 223, 236 (2009). “Addressing the
second prong before the first is especially appropriate where
‘a court will rather quickly and easily decide that there was
SAVED MAGAZINE V. SPOKANE POLICE DEP’T 11
no violation of clearly established law.’” Jessop, 936 F.3d
at 940 (quoting Pearson, 555 U.S. at 239).
We find the “clearly established” prong dispositive here,
and so we do not address whether, under the facts as alleged,
Officer Doe violated Plaintiffs’ constitutional rights. This
case is appropriate for resolution on the second prong of
Pearson because it is difficult to identify the precise
constitutional violation Plaintiffs allege in their complaint.
Plaintiffs’ briefing focuses heavily on their First
Amendment right to freedom of the press. In particular, they
allege that Officer Doe violated that right when he prevented
Yaghtin, acting as a journalist, from “engaging in dialogue
with a protester” under threat of arrest. There is no question
that news gathering is protected by the First Amendment.
Branzburg v. Hayes, 408 U.S. 665, 681 (1972). Generally,
however, a journalist’s First Amendment rights are no more
extensive than those of ordinary members of the public. See
id. at 683–84; Cohen v. Cowles Media Co., 501 U.S. 663,
669–70 (1991). Therefore, Yaghtin’s First Amendment
rights were coextensive with those of any other member of
the public within the counterprotest zone, and so our inquiry
more properly concerns the scope of First Amendment
speech rights within that zone.
Plaintiffs argue that their clearly established rights were
violated because any officer would know that censoring
what someone can say in a public space raises serious First
Amendment issues that we must review applying strict
scrutiny. Plaintiffs’ arguments rely on abstract formulations
of First Amendment law that define their rights “at a high
level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (quoting City & County of San Francisco v. Sheehan,
575 U.S. 600, 613 (2015)). As the Supreme Court explained,
however, “clearly established law must be ‘particularized’ to
12 SAVED MAGAZINE V. SPOKANE POLICE DEP’T
the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552
(2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). If this is not done, “[p]laintiffs would be able to
convert the rule of qualified immunity that our cases plainly
establish into a rule of virtually unqualified liability simply
by alleging violation of extremely abstract rights.”
Anderson, 483 U.S. at 639.
It is of course true that government officials may not
exclude persons from public places who are engaged in
“peaceful expressive activity solely because the government
actor fears, dislikes, or disagrees with the views those
persons express.” Wood v. Moss, 572 U.S. 744, 756–57
(2014). “It is equally plain that the fundamental right to
speak secured by the First Amendment does not leave people
at liberty to publicize their views ‘whenever and however
and wherever they please.’” Id. at 757 (quoting United
States v. Grace, 461 U.S. 171, 177–78 (1983)). The question
for our purposes, however, is much narrower: Was the right
asserted by Yaghtin 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).
Applying a typical First Amendment framework to
Plaintiffs’ claim leaves us with the proverbial task of trying
to fit a square peg in a round hole. In most cases where
restrictions on speech are challenged pursuant to the First
Amendment, we ask whether a legislative act, such as a city
ordinance or permit scheme, unconstitutionally infringes on
speech. See, e.g., Menotti v. City of Seattle, 409 F.3d 1113,
1117, 1128 (9th Cir. 2005) (analyzing an emergency city
order prohibiting access to portions of downtown); Forsyth
County v. Nationalist Movement, 505 U.S. 123, 124–27, 130
(1992) (analyzing a county’s assembly and parade fee
SAVED MAGAZINE V. SPOKANE POLICE DEP’T 13
ordinance); Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288, 289, 293 (1984) (analyzing a regulation
prohibiting camping in certain parks). But 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.
Our decision in Grossman v. City of Portland is
instructive on this point. 33 F.3d 1200 (9th Cir. 1994). In
Grossman, we granted qualified immunity to an officer
because his “allegedly unconstitutional action” was simply
to enforce “an ordinance which was duly enacted by the city
council.” Id. at 1209. Although we concluded that the
ordinance violated the First Amendment, the officer’s
enforcement of that ordinance was not clearly
unconstitutional. Id. at 1207–08. This is because 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. In Grossman, we granted qualified
immunity to the officer even though we concluded the
ordinance was unconstitutional because the ordinance “was
not so obviously unconstitutional as to require a reasonable
officer to refuse to enforce it.” Id. at 1210. Here, Plaintiffs
do not even allege that the underlying protest zone scheme
was unconstitutional, much less “patently” unconstitutional.
The D.C. Circuit’s qualified immunity decision in Kroll
v. United States Capitol Police, 847 F.2d 899 (D.C. Cir.
1988), is also persuasive. In Kroll, the plaintiff sued a group
14 SAVED MAGAZINE V. SPOKANE POLICE DEP’T
of police officers for allegedly violating his First
Amendment rights when they arrested him for protesting a
ceremony to welcome Olympic torchbearers without a
permit. Id. at 900–01. Even though the officers considered
the content of the plaintiff’s message to determine that it
“conflicted with the spirit” of the event, the D.C. Circuit held
that the officers were entitled to qualified immunity. Id.
at 901. The court noted that based on the underlying facts of
the case, 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.Making judgments about “the message being conveyed by a
particular demonstrator,” is inherent to implementing a
permit system because otherwise officers “would have been
authorized to issue permits, but do nothing when
counterdemonstrators chose to intrude into the area of the
‘permitted’ activity and carry on their efforts to
communicate a different (or indeed possibly conflicting)
message.” Id.Our decision in Grossman and the D.C. Circuit’s
reasoning in Kroll apply here. Plaintiffs do not challenge the
constitutionality of dividing protestors and counterprotestors
into separate zones. Consequently, it would make little
sense to conclude that Officer Doe violated clearly
established First Amendment law by enforcing the
separation of persons expressing particular views within
those zones. 3 A reasonable person in Officer Doe’s position
3
To emphasize, we need not, and do not, address the antecedent
question of whether the Spokane Police Department’s separate protest
zone scheme was constitutional because Plaintiffs have expressly
declined to challenge this issue. Accordingly, we have no policy or
legislative scheme to review.
SAVED MAGAZINE V. SPOKANE POLICE DEP’T 15
could have concluded that the Constitution permitted his
relatively modest efforts to prevent Yaghtin from provoking
counterprotestors in their designated zone, even if his actions
involved restricting Yaghtin’s speech. As with the officers
in Kroll—who, it should be noted, took the more heavy-
handed approach of arresting the plaintiff, 847 F.2d at 901—
Officer Doe determined that Yaghtin’s speech was contrary
to the purpose of the counterprotestor zone and prevented
him from engaging further on those certain topics.
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 policy. Cf. Hill
v. Colorado, 530 U.S. 703, 721 (2000) (“We have never
held, or suggested, that it is improper to look at the content
of an oral or written statement in order to determine whether
a rule of law applies to a course of conduct.”). The fact that
there was an underlying, uncontested governmental scheme
distinguishes this case from others where officers acted
entirely on their own initiative and arbitrarily restricted
speech. See, e.g., Snell v. City of York, 564 F.3d 659, 669
(3d Cir. 2009) (holding that a speech restriction in the form
of an ad hoc oral directive by a police officer, without any
guiding formal policy, presents a risk of arbitrary
enforcement warranting heightened scrutiny).
Consequently, Officer Doe is entitled to qualified immunity
on the second prong of the Pearson analysis.
II.
Plaintiffs also contend the district court erred in
dismissing their First Amendment claim against the Spokane
Police Department. Plaintiffs argue that four facts in their
complaint, taken together, amount to a policy, custom, or
practice under Monell v. New York City Department of
16 SAVED MAGAZINE V. SPOKANE POLICE DEP’T
Social Services, 436 U.S. 658 (1978): (1) Officer Vaughn’s
threat to arrest Yaghtin if he caused problems or acted
outside his role as a reporter, (2) Officer Doe’s actions in
telling Yaghtin what he could not say within the
counterprotest zone, (3) the radio log statements that “fake
press people” were at the event, and (4) the Assistant City
Attorney’s silence to Plaintiffs asking whether the officers’
conduct represented official police department policy.
The district court dismissed Plaintiffs’ claim, holding
that the Spokane Police Department was not a separate legal
entity subject to suit under 42 U.S.C. § 1983. On appeal
Plaintiffs do not challenge or present any argument about
this particular holding, and so we do not address it. Rather,
Plaintiffs briefs appear to focus on the district court’s
alternative holding that even if Plaintiffs had sued the City
of Spokane, their claim would still fail for lack of Monell
liability.
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.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiffs’
allegations amount to no more than an “isolated or sporadic
incident[]” that cannot form the basis of Monell liability for
an improper custom. Trevino v. Gates, 99 F.3d 911, 918 (9th
Cir. 1996). Plaintiffs cite no law in support of their theory
that a city’s silence about a single incident can support the
finding of a city-wide custom. “When one must resort to
inference, conjecture and speculation to explain events, the
challenged practice is not of sufficient duration, frequency
and consistency to constitute an actionable policy or
custom.” Id. at 920.
SAVED MAGAZINE V. SPOKANE POLICE DEP’T 17
CONCLUSION
Officer Doe is entitled to qualified immunity because
Plaintiffs have not identified any clearly established right
that Officer Doe violated. Plaintiffs have also not plausibly
alleged any City of Spokane policy, practice, or custom
sufficient to establish Monell liability. The judgment of the
district court is therefore affirmed.
AFFIRMED.