In June 2019, the Spokane Public Library hosted a children’s book reading event called “Drag Queen Story Hour.” The event proved to be controversial and drew protesters to the library. The police separated 150 protesters and 300 counterprotesters into two zones near the library.
Afshin Yaghtin, both the editor in chief and a journalist for Saved Magazine (Saved), sought to cover the event. He wore his press badge, and he identified himself to police officers as a member of the press. Yaghtin alleged he was assigned a police “detail” to accompany him through a crowd of counterprotesters to the library entrance. One Spokane police officer, Kevin Vaughn, warned Yaghtin that he would be subject to arrest if he started “engaging people” or caused “a problem.”
While Yaghtin was walking through the counterprotest zone, he began to converse with a counterprotester who asked him whether he was the person who had previously advocated for the execution of gay people. When Yaghtin responded “No that is what the Bible says,” an unidentified officer, Officer Doe, told Yaghtin he was not exercising his press rights and was instead engaging the counterprotester. Yaghtin responded that he was “asked a question” and “was there to comply.” Officer Doe then directed the counterprotesters to get out of the way and let Yaghtin continue to move through the zone.
In August 2020, after amending their complaint, Yaghtin and Saved filed a lawsuit against the Spokane Police Department, the Department’s Chief of Police, and Officer Doe for violations of their First Amendment rights. Yaghtin and Saved contended that the police officers violated their right to freedom of the press when Officer Doe monitored Yaghtin’s communications and intervened in the conversation between Yaghtin and a counterprotester. They also alleged that the City adopted the officer’s actions as policy “through silent acquiescence.” The district court dismissed the lawsuit. Yaghtin and Saved appealed.
On appeal, Yaghtin and Saved argued that Officer Doe was not entitled to qualified immunity. The Ninth Circuit panel disagreed. Qualified immunity shields government officials who perform discretionary functions from liability for civil damages. To get this immunity, the government has to show that its employee’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Courts use a two-prong test to determine whether a police officer is entitled to qualified immunity: 1) was there a violation of a constitutional right; and 2) was that right was clearly established at the time of the officer’s alleged misconduct. The panel concluded that the second prong was dispositive. The panel was not aware of any precedent that would alert Officer Doe that his actions violated clearly established First Amendment law. Considering the lack of any precedent to the contrary, it was reasonable 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.
Further, the panel rejected Yaghtin and Saved’s argument that the district court erred in dismissing their First Amendment claim against the Spokane Police Department. The panel reasoned that even assuming Spokane police officers violated Yaghtin’s First Amendment rights, nothing in the complaint indicated any Police Department policy, custom, or practice leading to that violation. The Ninth Circuit noted that there was no case law supporting their theory that a city’s silence about a single incident could support the finding of a city-wide custom. Instead, it determined that Yaghtin’s allegations amounted to no more than an “isolated or sporadic incident” that could not form the basis of liability.
Saved Magazine. v. Spokane Police Dep’t (9th Cir. 2021) 19 F.4th 1193.
NOTE:
The basis for the “clearly established” prong of the qualified immunity from suit test is fairness; it would be unfair to hold government officials to a rule that reasonable people were not aware of at the time.