August 17, 2017

Tenth Circuit: No Clearly Established Right to Use Inflammatory Language in Course Assignment Without Being Criticized or Pressured to Make Revisions

The Tenth Circuit Court of Appeals published its opinion in Pompeo v. Board of Regents for the University of New Mexico on Tuesday, March 28, 2017.

Ms. Pompeo was a graduate student at the University of New Mexico (UNM). Ms. Pompeo filed a 42 U.S.C. § 1983 claim against the Board of Regents of UNM, and Caroline Hinkley and Susan Dever in their individual capacities, for violation of her First Amendment rights. Ms. Pompeo submitted a paper that contained language relating to a politically charged topic. The Defendants met with the student on several occasions to assist the student in rewriting the paper to include citable authority and language consistent for an academic audience. Ms. Pompeo did not rewrite the paper and claimed she was banned from the class. The district court granted summary judgment in favor of the individual defendants because they were entitled to qualified immunity. The UNM Board of Regents was immune under the Eleventh Amendment. Ms. Pompeo appealed.

The Tenth Circuit exercised jurisdiction under 29 U.S.C. 1291 and it reviewed the grant for summary judgment de novo.

The court evaluated the issue of whether the defendants were entitled to qualified immunity, focusing on the whether “the right at issue was clearly established.” For a right to be clearly established, “in the light of pre-existing law the unlawfulness must be apparent.” Within the specific context of the case, the particular conduct is clearly established if “existing precedent must have placed the statutory or constitutional question beyond debate.” Further, “a court must assess whether the right was clearly established against a backdrop of the objective legal reasonableness of the actor’s conduct.”

The parties agree that the dispute involved “school-sponsored speech” that “a school affirmatively promotes, as opposed to speech that it tolerates.” Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Reviewing courts give “substantial deference to educators’ stated pedagogical concerns.” “Courts may override an educator’s judgment where the proffered goal or methodology was a sham pretext for an impermissible ulterior motive.” The educator may “limit or grade speech in the classroom in the name of learning and not as a pretext for punishing the student for her race, gender, economic class, religion or political persuasion.” The court found that summary judgment was appropriate in this case because the defendants’ actions were justified as truly pedagogical.

Ms. Pompeo argued that the right is clearly established by precedent that “an instructor cannot restrict a student’s speech based on the instructor’s hostility to the viewpoint expressed in the speech and pretextual explanation for the legitimate reason for the restriction of speech will not pass constitutional muster.” The court rejected this argument. “Our jurisprudence “entrusts to educators these decisions that require judgments based on viewpoints.” Further, “clearly established law would not put defendants on notice that such conduct is unconstitutional.” Therefore, under Fleming educators are not prohibited from engaging in viewpoint discrimination.”

The court stated that the inquiry into whether the pedagogical concern not well established by case law. The inquiry is either objective or subjective. However, the Tenth Circuit did not refine the inquiry in this decision because it found that the defendants are entitled to qualified immunity under either standard. “The actions taken by Hinkley and Dever were sufficiently related to pedagogical goals that the claimed unconstitutional nature of their particular conduct was not clearly established.” Additionally, the pedagogical goals were legitimate. The defendants’ actions “encouraged critical analysis, to avoid unsupported generalizations, and maintain focus on assigned material rather than a student’s general opinions.”

The court AFFIRMED the district court’s grant of summary judgment in favor of defendants.

SB 17-062: Prohibiting Institutions of Higher Education from Limiting Students’ Free Speech

On January 13, 2017, Sen. Tim Neville and Rep. Stephen Humphrey introduced SB 17-062, “Concerning the Right to Free Speech on Campuses of Public Institutions of Higher Education.”

The bill prohibits public institutions of higher education (public institution) from limiting or restricting student expression in a student forum. ‘Expression’ is defined to mean any lawful verbal or written means by which individuals communicate ideas to one another, including all forms of peaceful assembly, protests, speaking verbally, holding signs, circulating petitions, and disstributing written materials. ‘Expression’ also includes voter registration activities but does not include speech that is primarily for a commercial purpose.

A public institution shall not subject a student to disciplinary action as a result of his or her expression. A public institution shall not designate any area on campus as a free speech zone or otherwise create policies that imply that its students’ expressive activities are restricted to a particular area of campus. Additionally, a public institution shall not impose restrictions on the time, place, and manner of student speech unless such restrictions are reasonable, justified without reference to the speech’s content, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication of the information or message.

The bill states that it does not grant other members of the college or university community the right to disrupt previously scheduled or reserved activities in a portion or section of the student forum at that scheduled time. Additionally, the bill clarifies that it is not to be interpreted as preventing the public institution from prohibiting, limiting, or restricting expression that is not protected under the 1st Amendment.

A student who has been denied access to a student forum for expressive purposes may bring a court action to recover reasonable court costs and attorney fees.

The bill was introduced in the Senate and assigned to the Education Committee. It was amended in committee, and was again amended on Second and Third Reading in the Senate. It passed the Senate and was introduced in the House and assigned to the State, Veterans, & Military Affairs Committee.

HB 17-1013: Concerning the Free Exercise of Religion

On January 11, 2017, Reps. Stephen Humphrey & Dave Williams and Sens. Tim Neville & Vicki Marble introduced HB 17-1013, “Concerning a Person’s Free Exercise of Religion.”

The bill:

  • Specifies that no state action may burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless it is demonstrated that applying the burden to a person’s exercise of religion is essential to further a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest;
  • Defines ‘exercise of religion’ as the practice or observance of religion. The bill specifies that exercise of religion includes the ability to act or refuse to act in a manner substantially motivated by a person’s sincerely held religious beliefs, whether or not the exercise is compulsory or central to a larger system of religious belief; except that it does not include the ability to act or refuse to act based on race or ethnicity.
  • Provides a claim or defense to a person whose exercise of religion is burdened by state action; and
  • Specifies that nothing in the bill creates any rights by an employee against an employer unless the employer is a government employer.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs Committee. It is scheduled to be heard in committee on January 25, 2017 at 1:30 p.m.

Colorado Court of Appeals: “Newsletter Exclusion” Did Not Apply to Unlicensed Securities Advisor

The Colorado Court of Appeals issued its opinion in Mandel v. Rome on Thursday, December 30, 2016.

Colorado Securities Act—Licensure—Summary Judgment—Investment Adviser—First Amendment—Restitution—Permanent Injunction.

Defendants Mandel and Wall Street Radio, Inc. hosted a radio show devoted to security investments, Wall Street Radio (WSR). They also offered through a website a variety of investment related services under two plans. The Master Membership Plan, with a $500 annual fee, provided newsletters, seminars, and the opportunity to email or call defendant Mandel twice a week with questions about specific stocks (crystal ball readings). The Lead Trader Membership Plan, under which subscribers paid between $1000 and $2000 annually, provided the same services as Master Membership and also offered the opportunity to mimic Mandel’s own security trades through an investment vehicle known as auto-trading. In auto-trading, trades are automatically made that mimic the lead trader’s trades without the need for approval. Followers are often not aware of the trades until after they have occurred.

The auto-trading was done through a company called Ditto Trade, in which Mandel owned an interest. Ditto Trade requires its lead traders to attest that they are either registered investment advisers or exempt from registration. Neither Mandel nor WSR were licensed in Colorado as investment advisers or investment adviser representatives. In 2008, Mandel had applied for a license, but his application was denied in an administrative action. A stipulated consent order denying the application precluded him from reapplying for 10 years and barred him from acting as a solicitor or otherwise associating with any Colorado licensed investment adviser or “federally covered” adviser. Mandel attested to operating within an exemption.

This action was commenced by the Securities Commissioner of Colorado, Rome, against Mandel and WSR, alleging they had acted as unlicensed investment advisers or investment adviser representatives under the Colorado Securities Act (CSA). Defendants claimed that pursuant to the CRS § 11-51-201(9.5)(b)(III) “newsletter exclusion” they were exempt from licensure. The trial court granted summary judgment against defendants. It entered a permanent injunction and directed them to pay $80,000 in restitution ($1000 for each auto-trading subscriber).

On appeal, defendants argued that the trial court erroneously entered summary judgment because a genuine issue of material fact existed as to whether they acted as investment advisers or investment adviser representatives. The Colorado Court of Appeals found that the Commissioner presented undisputed facts sufficient to resolve the case. It therefore turned to whether judgment was appropriate as a matter of law.

There was no dispute to the evidence presented by the Commissioner that defendants met the basic definition of investment adviser or investment adviser representative. To avoid the licensing requirement, defendants had to meet the “newsletter exclusion” from the definition of investment adviser, which required their services to qualify as bona fide publications or newsletters with a regular circulation. The court found that the lead trader services were not “publications” generally disseminated to subscribers. It rejected defendants’ argument that because they disseminated a newsletter, all of their other activities fell within the exclusion. Also, the lead trader service was not bona fide because it did not consist of disinterested commentary or analysis; instead, each follower’s investment decision was directly linked to Mandel’s investment account. Thus Mandel could personally benefit from the trades. Finally, the service was not “regular.” It did not follow a routine schedule but occurred when Mandel decided to make trades. Similarly, the crystal ball readings were not regular and addressed specific investment situations. Because defendants provided both services for compensation without a license they violated the CSA.

Defendants further argued that the summary judgment was inappropriate because the Commissioner failed to controvert their affirmative defense that the First Amendment of the federal constitution and Colorado Constitution art. II, § 10 barred the enforcement action. Because the services provided were sufficiently personal to treat defendants as investment advisors or investment representatives, requiring them to obtain a license as a condition of providing these services is constitutional.

Defendants also argued that the trial court erred in imposing restitution, contending that only damages could be awarded under the CSA. The court did not need to address this argument because it held that the record and the law support the award under a common law restitution theory.

Lastly, defendants challenged both parts of the permanent injunction. Defendants argued that the first part of the injunction improperly enjoins them from engaging in lawful activity. Defendants contended that the court abused its discretion and exceeded its statutory authority by enjoining them from “associating in any capacity” with securities professionals engaged in business in Colorado. The court found that the trial court had statutory authority to enjoin defendants from associating with securities professionals to ensure compliance with the CSA. However, the court found that the first part of the injunction was overly broad and subject to different interpretations.

Defendants argued that the second part of the injunction is simply an edict to obey the law and is thus overly broad and vague. The court agreed.

The summary judgment and restitution orders were affirmed. The injunction was vacated in part and reversed in part, and the case was remanded to the trial court for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: High School Student’s Tweets Did Not Constitute True Threats or Fighting Words

The Colorado Court of Appeals issued its opinion in People in Interest of R.D. on Thursday, December 30, 2016.

Social Media—Juvenile Delinquent—Harassment—First Amendment—Right to Free Speech—True Threats—Fighting Words.

R.D., a high school student, argued with a student from a different high school through tweets on the social networking website Twitter. The People filed a petition in delinquency against R.D., and the district court adjudicated R.D. a juvenile delinquent based on conduct that would constitute harassment if committed by an adult.

On appeal, R.D. argued that C.R.S. § 18-9-111(1)(e) as applied to his conduct violated his First Amendment right to free speech. The People responded that R.D.’s statements were not protected by the First Amendment because they were true threats and fighting words. While the language of R.D.’s tweets was violent and explicit, R.D.’s tweets did not constitute true threats because they were not “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Fighting words can occur only when the speaker is in close physical proximity to the recipient. R.D. was not in close physical proximity to A.C. at the time of the incident. Because R.D.’s statements were neither true threats nor fighting words, the statute as applied violated his First Amendment rights.

The judgment was reversed and the case was remanded with directions to vacate the adjudication of juvenile delinquency and dismiss the proceeding.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Findings of Fact Needed to Determine Whether Termination Caused by Employer’s Belief that Employee Engaged in Protected Activity

The Tenth Circuit Court of Appeals issued its opinion in Bird v. West Valley City on Monday, August 8, 2016.

Karen Bird was hired at West Valley City’s animal shelter in 2001, and was promoted to manager by Kelly Davis, her direct supervisor, in 2002. In 2005, West Valley City’s human resources manager, Shirlayne George, investigated the shelter and reported several negative comments about Ms. Bird by fellow employees. Mr. Davis was also the subject of several complaints, especially by women, and Ms. George investigated him in 2009. Most of the women who complained about Mr. Davis were either fired or voluntarily left the animal shelter shortly after complaining. Ms. Bird and Mr. Davis had a disagreement in 2009, and their already strained relationship deteriorated thereafter, to the point where Ms. Bird would not look Mr. Davis in the eye and could not stand to be in the same room as him.

In October 2011, the Salt Lake Tribune published an article about a cat that had endured two failed euthanasia attempts in the shelter’s gas chamber. About a week later, a reporter called the shelter after receiving an anonymous tip about a planned mass-euthanasia due to overpopulation. Both Layne Morris, the Community Preservation Department Director and Mr. Davis’s direct supervisor, and Mr. Davis believed that the anonymous tip had come from Ms. Bird, although she denied it. Ms. Bird was notoriously against using the gas chamber for euthanasia and was one of the few individuals privy to the information about the shelter’s overpopulation. Shortly after this incident, Ms. Bird emailed Ms. George that she could not take any more of Mr. Davis’s harassment. She filed a formal complaint on November 3, 2011.

Less than a week later, Mr. Davis issued two letters of reprimand to Ms. Bird regarding unauthorized use of overtime pay, despite the shelter’s usual practice of issuing less formal warnings before the letters of reprimand. On November 14, in response to Ms. Bird’s complaint, Ms. George undertook an investigation of the entire shelter. She received several complaints regarding both Ms. Bird and Mr. Davis, but more against Ms. Bird. Mr. Morris reviewed the results of the investigation and decided to discipline Ms. Bird for insubordination and failure to be courteous to the public or other shelter employees. He sent Ms. Bird a letter advising of the discipline on November 16, and ultimately terminated her employment on November 29. Mr. Morris testified that his decision to terminate Ms. Bird was not only based on the November 2011 investigation, but rather because of the deterioration of the relationship between Ms. Bird and Mr. Davis. Mr. Morris also testified that he had considered terminating Ms. Bird in December 2010 but Mr. Davis stayed his hand.

Ms. Bird unsuccessfully appealed her termination to Ms. George, then the city’s human resources director, and finally to the West Valley City Appeals Board. When all three appeals were unsuccessful, Ms. Bird filed a complaint in district court, alleging the city terminated her in violation of Title VII as a result of gender discrimination and subjected her to a hostile work environment; the city violated § 1983 because it terminated her as a result of gender discrimination in violation of the Equal Protection Clause; and both the city and Mr. Davis violated § 1983 because they terminated her in retaliation for exercising her First Amendment rights concerning the anonymous tip to the reporter. Ms. Bird maintained that she did not provide the anonymous tip, but because she was perceived as doing so, the termination in retaliation violated her First Amendment rights. Ms. Bird also brought state law claims for breach of contract and breach of the covenant of good faith and fair dealing. The district court granted summary judgment to defendants on all claims.

On appeal, the Tenth Circuit first considered Ms. Bird’s Title VII gender discrimination and hostile work environment claims. Applying the McDonnell Douglas burden-shifting framework, the Tenth Circuit evaluated Ms. Bird’s claim that the shelter had a pattern and practice of discriminating against female employees. However, Mr. Morris provided two legitimate, non-discriminatory reasons for terminating Ms. Bird: insubordination and failure to be courteous and cooperative with fellow employees. The Tenth Circuit evaluated Ms. Bird’s proffered reasons why Mr. Morris’s explanation was pretextual. She first contended that the reasons he outlined for terminating her differed from those offered in his deposition. The Tenth Circuit disagreed; the Circuit noted that Mr. Morris had offered specific examples in his deposition but his stated reasons for Ms. Bird’s termination were always insubordination and failure to be courteous. Ms. Bird also contended that the individuals to whom she appealed her termination offered different reasons, but the Tenth Circuit found that they merely offered different instances of her conduct. The Tenth Circuit held that no reasonable juror could determine that the city’s reason for terminating her was pretextual.

The Tenth Circuit similarly disposed of Ms. Bird’s hostile work environment claims. Although Mr. Davis’s conduct was deplorable, the Circuit did not find any evidence that his behavior was gender-based. Ms. Bird pointed to several statements, but the statements were generalized and did not point to specific instances. The Tenth Circuit refused to consider vague and conclusory statements as evidence of gender discrimination.

Turning next to the § 1983 Equal Protection claims, the Tenth Circuit found that because Ms. Bird alleged the same facts to prove her Equal Protection claim as she asserted to prove her Title VII claims, the Equal Protection argument failed for the same reasons. The Tenth Circuit also disposed of Ms. Bird’s state law breach of contract and breach of fiduciary duty claims. Ms. Bird relied on the employee handbook to argue her claims based on violation of the “Workplace Violence” section and the unwritten anti-retaliation policy. The Tenth Circuit found that the large disclaimer on the handbook eliminated all contractual liability for the city.

Finally, the Tenth Circuit evaluated Ms. Bird’s § 1983 First Amendment retaliation claims. Although Ms. Bird continued to argue that she did not make the anonymous tips to the reporters, she alleged that she was terminated in retaliation because the city believed she had made the tips. The Tenth Circuit found that the Supreme Court’s decision in Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016), controlled its analysis. The lower court did not evaluate Ms. Bird’s First Amendment claims because she could not show that she engaged in protected activity. The Tenth Circuit remanded for a determination of whether Ms. Bird raised a genuine issue of material fact that the city’s belief motivated its decision to terminate her employment.

The Tenth Circuit affirmed the district court’s grant of summary judgment on the Title VII gender discrimination and retaliation claims, the § 1983 Equal Protection Claims, and the state law contractual claims. The Tenth Circuit reversed and remanded on the § 1983 First Amendment claims.

Tenth Circuit: Officer, School Officials Entitled to Qualified Immunity for Arresting “Class Clown” for Burping in Class

The Tenth Circuit Court of Appeals issued its opinion in A.M. v. Holmes on Monday, July 26, 2016.

In May 2011, F.M. was a student at Cleveland Middle School in Albuquerque when his teacher radioed a request for assistance over her school-issued radio because F.M. was burping loudly in class and disrupting the other students. Officer Acosta, an Albuquerque police officer who was assigned to the school, answered the teacher’s radioed call for help. When Officer Acosta approached the classroom, he saw F.M. sitting on the floor in the hallway while the teacher stood in the classroom doorway. The teacher informed Officer Acosta that F.M. had interrupted class by burping loudly, and even when she ejected him from the room, he continued to lean into the class and burp, making the other students laugh and stopping the teacher from continuing her planned lessons. Officer Acosta escorted F.M. to the office, where he arrested F.M. under N.M. Stat. Ann. § 30-20-13(D), which provides that interfering with the educational process is a petty misdemeanor offense. Officer Acosta informed the principal, Ms. LaBarge, of his intent to arrest F.M., and Ms. LaBarge attempted to contact F.M.’s mother and also prepared a slip for a one-day suspension of F.M. Officer Acosta then transported F.M. to a juvenile detention facility, where he was picked up by his mother. F.M. did not argue with Officer Acosta and was rated a -2 out of 10 on the detention center’s risk assessment. F.M. did not return to Cleveland Middle School for the rest of the year. A.M. spoke publicly about F.M.’s arrest, and there was a good deal of publicity about the incident.

The following year, A.M., F.M.’s mother, re-enrolled him at Cleveland. On November 8, 2011, a student approached a teacher to report witnessing a drug transaction. Officer Acosta retrieved the school’s surveillance videos and, with Ms. LaBarge and an assistance principal, identified the five students involved in the transaction. F.M. was identified as one of the students. All of the students were searched individually in a conference room next to Ms. LaBarge’s office with several adults presents. All of the searches except F.M.’s were audio recorded.

None of the students had drugs on them, but F.M. had $200 cash. He relayed to the adults present that the cash was a birthday present. The assistant principal asked F.M. if he had anything he was not supposed to have, and he said he had a belt buckle in his bag with a marijuana leaf imprint. A search of his backpack revealed the belt buckle and a red bandanna, among other things. F.M. was wearing several layers of clothing, which he removed at the request of the school officials. A male teacher flipped down the waistband of F.M.’s athletic shorts, which revealed a pair of boxers underneath. The teacher did not touch F.M.’s boxers. During the search, A.M. contacted the school and was informed of the events of the morning. A.M. confirmed that F.M. had left the house carrying $200 in cash that morning. F.M. received a three-day suspension for the bandanna and belt buckle because they violated the school’s policies against “gang-related” clothing and “inappropriate messages or symbols.” Later that day, A.M. met with Ms. LaBarge, but according to Ms. LaBarge, A.M. “stormed out” of the office and said her attorney would contact the school.

A.M. sued Officer Acosta, Ms. LaBarge, and the assistant principal in state court, alleging Fourth Amendment violations relating to the May 2011 and November 2011 incidents. A.M. objected to F.M.’s handcuffing in May 2011, opining that a reasonable officer should have known that burping was not a crime and no force was necessary to effectuate an arrest of the compliant child. A.M. also alleged that Ms. LaBarge’s strip search of F.M. in November 2011 was unreasonable. Defendants removed the action to federal court and moved for summary judgment, asserting qualified immunity. The district court granted summary judgment to Ms. LaBarge, agreeing that she was entitled to qualified immunity. While the claims were still pending, A.M. filed another state court lawsuit against the assistant principal, alleging Fourth and First Amendment violations related to the strip search and retaliation for A.M.’s speaking to the media. The assistant principal removed the action to district court and argued collateral estoppel. The court granted summary judgment to the assistant principal. The district court also granted summary judgment to Officer Acosta, finding qualified immunity applicable. A.M. appealed.

The Tenth Circuit addressed A.M.’s claims regarding Officer Acosta first. A.M. contended that the district court sua sponte granted qualified immunity to Officer Acosta, but the Tenth Circuit noted that A.M. devoted most of her reply brief to the issue of qualified immunity and therefore was on notice that the defense had been raised. A.M. also contended she was deprived of the opportunity to present evidence of injuries F.M. suffered by being handcuffed, but the Circuit noted that in Officer Acosta’s response brief, he noted that any injury suffered would have been de minimus, therefore affording A.M. a chance to respond.

The Tenth Circuit next addressed the district court’s grant of qualified immunity to Officer Acosta on the claim that he arrested F.M. without probable cause in violation of the Fourth Amendment. The Tenth Circuit evaluated the New Mexico statute in question and found that Officer Acosta had arguable probable cause to arrest F.M. under the statute banning interference with the educational process. A.M. argued that burping in class did not rise to the level of seriousness contemplated by the statute, and F.M. was at worst being a class clown, conduct that “would have subjected generations of school boys to an after-school detention, writing lines, or a call to his parents.” The Tenth Circuit rejected A.M.’s contentions and determined that the broad language of the statute seemed to encompass F.M.’s conduct. The Tenth Circuit found that A.M. could not carry her burden regarding clearly established law, since the statute appeared to condemn F.M.’s conduct. The Tenth Circuit found that Officer Acosta possessed reasonable probable cause when he arrested F.M. Likewise, the Tenth Circuit agreed with the district court’s reasoning that A.M. had not shown that Officer Acosta committed a constitutional violation when he arrested F.M. The district court determined that A.M. failed to present evidence of an actual physical or psychological injury.

The Tenth Circuit next turned to A.M.’s claims against the assistant principal. The district court found that the assistant principal was entitled to qualified immunity on A.M.’s First, Fourth, and Fourteenth Amendment claims, and the Tenth Circuit agreed. Because the November 2011 search of F.M. was arguably justified at its inception, the assistant principal did not violate the Fourth Amendment by beginning the search of F.M. Likewise, because the search continued to be reasonable in its scope, it was within the strictures of the Fourth Amendment. The Tenth Circuit also dismissed A.M.’s claim that the assistant principal executed the search in retaliation for A.M.’s protected First Amendment activity, referring to its first finding that the search was reasonable at its inception and throughout its duration. A.M. also alleged a Fourteenth Amendment Equal Protection violation because the assistant principal searched F.M. more extensively than the other four students. The Tenth Circuit found that A.M. failed to set forth a legally cognizable Fourteenth Amendment claim because F.M. was not similarly situated to the other students.

Finally, A.M. argued the district court committed reversible error by granting qualified immunity to Ms. LaBarge on A.M.’s unreasonable search claim. A.M. incorporated her arguments against the assistant principal into the brief on Ms. LaBarge’s claim, and the Tenth Circuit decided to follow its previous reasoning in rejecting A.M.’s position.

The Tenth Circuit upheld the grants of qualified immunity as to all three defendants. Judge Gorsuch wrote a compelling dissent; he would have followed a previous New Mexico opinion that limited the statute in question to behavior much more serious than burping in class.

Tenth Circuit: Officer Had Probable Cause to Arrest Person Filming Security Checkpoint at Airport

The Tenth Circuit Court of Appeals issued its opinion in Mocek v. City of Albuquerque on Tuesday, December 22, 2015.

Phillip Mocek was arrested in a security checkpoint of the Albuquerque Sunport airport for concealing his identity after filming airport security procedures and being questioned on suspicion of disorderly conduct. Mocek was ultimately charged with disorderly conduct, concealing name or identity, resisting an officer’s lawful command, and criminal trespass. At trial, Mocek introduced the video footage taken prior to the arrest, and was acquitted on all counts. Mocek then brought this action in the district court alleging First and Fourth Amendment violations and seeking damages under 42 U.S.C § 1983, as well as declaratory relief. Mocek also sued the officers and City of Albuquerque for malicious abuse of process under New Mexico tort law. The district court granted the defendants’ Rule 12(b)(6) motions to dismiss for all claims, Mocek appealed, and the Tenth Circuit Court of Appeals affirmed the dismissal of all claims.

First, the Tenth Circuit affirmed the dismissal of the constitutional claims against the individual police officers (including the arresting officer, Officer Dilley) and TSA agents, holding the individual defendants are entitled to qualified immunity because their actions were reasonable and in compliance with the Fourth and First Amendments. With respect to the Fourth Amendment claims against the individual defendants, the Tenth Circuit reasoned Officer Dilley possessed reasonable suspicion that justified stopping Mocek and asking him to identify himself, considering the fact that an airport security checkpoint is a location where “order was paramount.” Further, it was reasonable for Officer Dilley to believe that an investigative stop for disorderly conduct at an airport security checkpoint required production of some physical proof of identity, and given Mocek’s continued refusal to show identification, it was reasonable for Officer Dilley to believe he had probable cause to arrest Mocek for violating a New Mexico criminal statute that prohibits the obstruction of a public officer’s legal performance of his duty. In short, Officer Dilley’s interpretation of the aforementioned New Mexico statute in establishing probable cause to arrest Mocek was reasonable, and therefore, Officer Dilley and the other individual defendants were entitled to qualified immunity on Mocek’s Fourth Amendment claims.

In rejecting Mocek’s claim that the individual defendants unconstitutionally retaliated against the exercise of his First Amendment right to film at the security checkpoint, the Tenth Circuit determined Mocek could not satisfy the third prong of a retaliation claim: that the government’s actions were substantially motivated in response to his protected speech. The Tenth Circuit reasoned when Mocek was arrested, it was not clearly established that Mocek could show the requisite motive where his arrest was arguably supported by probable cause, and therefore, the individual defendants were entitled to qualified immunity on Mocek’s First Amendment retaliation claim.

Second, with respect to Mocek’s claims for declaratory relief against the defendants in their official capacities, the Tenth Circuit affirmed the district court’s dismissal of the claim against the TSA defendants for lack of jurisdiction because Mocek’s pleadings never identified a federal waiver of sovereign immunity (which is required because a suit against a government agent is treated as a suit against the government, and the federal government may only be sued where it has waived sovereign immunity). As for the claim for declaratory relief against the police defendants in their official capacities, the Tenth Circuit affirmed the district courts dismissal, reasoning Mocek had not sufficiently alleged that his past injury resulted in continuing, present adverse effects, and because Mocek had not alleged any injury beyond a subjective chilling effect.

Third, in affirming the district court’s dismissal of Mocek’s claim that the City of Albuquerque is liable under § 1983 because it caused his injuries through unconstitutional policies and practices, the Tenth Circuit held the complaint, aside from conclusory statements, contained no allegations giving rise to an inference that the municipality itself established a deliberate policy or custom that caused Mocek’s injuries.

Fourth, considering Mocek’s claims that the arrest and subsequent filing of a criminal complaint against him constituted a malicious abuse of process, the Tenth Circuit first determined the claims were property before it through either diversity jurisdiction or through the district court’s unchallenged exercise of supplemental jurisdiction. With respect the merits of the claims, the Tenth Circuit upheld the district court’s dismal, finding Mocek was unable to satisfy either the absence of probable cause or the procedural impropriety theories of liability. Under the absence of probable cause theory, the Tenth Circuit found there was at least arguable probable cause to arrest him for concealing identity, and even if there was no probable cause for the other three charges, Mocek nowhere argues that they rendered the complaint as a whole obviously devoid of probable cause. Under the procedural impropriety theory, the Tenth Circuit found Mocek’s brief does not point to anything procedurally improper surrounding his arrest. Therefore, in determining Mocek failed to establish liability under either theory, the Tenth Circuit held Mocek had not established that the arrest and subsequent filing of a criminal complaint against him constituted a malicious abuse of process, thereby affirming the district court’s dismissal of said claims.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Claims in Lawsuit Immunized Under First Amendment from Conspiracy Allegations

The Colorado Court of Appeals issued its opinion in City of Aurora v. 1405 Hotel, LLC on Thursday, April 7, 2016.

Immunity from Suit Under the First Amendment—Denial of Discovery—Private versus Public Dispute—“Sham” Claims—Attorney Fees and Costs.

Eleven hotels (collectively, Hotels) petitioned the Colorado Economic Development Commission (CEDC), requesting that CEDC require the City of Aurora to submit a new application for an $81 million tax subsidy after the initial company that had been awarded the subsidy assigned its interest to RIDA Development Corporation (RIDA). The Attorney General (AG) denied the petition on behalf of the CEDC. The Hotels filed an action in the Denver District Court (Denver lawsuit). The district court and a division of the Colorado Court of Appeals affirmed the AG’s denial of the Hotels’ petition. However, alleging conspiracy to interfere with the financing and development of the project, plaintiffs, Aurora, the Aurora Urban Renewal Authority, and RIDA (collectively, Aurora parties), sued the Hotels. The district court found that the Hotels’ complaint in the Denver lawsuit was immunized under the First Amendment, based on Protect Our Mountain Environment, Inc. v. Dist. Ct., 677 P.2d 1361 (Colo. 1984) (POME), and dismissed the Aurora parties’ complaint. The Aurora parties appealed and the Hotels cross-appealed.

The Aurora parties first argued it was an abuse of discretion not to allow discovery and a hearing before granting the Hotels’ motion to dismiss. The Colorado Court of Appeals agreed with the district court that because the Aurora parties were unable to articulate any need for discovery on the first, objective prong of the POME test—whether the Hotels’ claims had a reasonable basis in law or fact—they were not entitled to discovery before the court ruled on the Hotels’ motion.

The Aurora parties then contended that POME did not apply because this was a purely private dispute. The court disagreed. The Hotels did not sue any private party, and the dispute arose from a petition to a state agency for judicial review of state agency action regarding an award of millions of dollars in taxpayer subsidies to a city to develop a project of “major public importance.”

Finally, the Aurora parties argued that three of the Hotels’ claims in the Denver lawsuit lacked reasonable factual support or a cognizable basis in law and were “sham” claims. The court disagreed. It also agreed with the Hotels that the one claim the district court found to be a “sham” was in fact not a sham because it had reasonable factual support and a cognizable basis in law.

The Hotels contended that the court erred in concluding their third claim was a sham and that the C.R.C.P. 12(b)(5) dismissal of RIDA’s claims should be affirmed. The court concluded their third claim was not a sham, and because the court affirmed the dismissal of the Aurora parties’ complaint, it did not reach the second argument.

The judgment was affirmed, and the court awarded the Hotels attorney fees and costs.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Image on License Plate Conveys Message of Oklahoma’s Native American History

The Tenth Circuit Court of Appeals issued its opinion in Cressman v. Thompson on Tuesday, August 4, 2015.

In 2008, a task force created by the Oklahoma legislature chose a new design for the standard Oklahoma state license plate featuring an image of a Native American shooting an arrow into the sky along with the words “Native America.” The design is based on a sculpture by an acclaimed Oklahoma artist depicting a story in which an Apache warrior fired an arrow blessed by a medicine man into the heavens in order to carry prayers for rain into the spirit world. The license plate design was chosen as a “mobile billboard” to promote tourism in Oklahoma.

Keith Cressman, an Oklahoma resident with conservative Christian beliefs, objected to the standard license plate because he believed it promoted a message of pantheism with which he disagrees. Cressman tried to avoid displaying the message by covering it but was told that covering any part of the license plate is illegal. Cressman objected to having to purchase a specialty plate and asserted that the state should give him a specialty plate at no extra charge. He filed a 42 U.S.C. § 1983 lawsuit in November 2011, alleging that the license plate constituted forced speech in violation of his First Amendment rights and requesting an injunction prohibiting state officials from prosecuting him for covering the image or, alternatively, requiring the Oklahoma Tax Commission to provide him a specialty plate at the same cost as the standard plate.

Defendants filed motions to dismiss based on lack of standing and failure to state a claim. The district court determined that Cressman had standing but dismissed the claim because Cressman had failed to state a plausible claim of compelled speech. Cressman appealed, and the Tenth Circuit determined that he had Article III standing and reversed for further proceedings based on the panel’s conclusion that Cressman’s complaint stated a plausible compelled-speech claim. On remand, the parties engaged in discovery and filed cross-motions for summary judgment and a joint stipulation of uncontested facts. The district court granted partial summary judgment to certain defendants and held a bench trial regarding the remaining claims. The district court ultimately concluded the Native American image did not provide a basis for Cressman’s First Amendment claim. Cressman again appealed.

The Tenth Circuit, engaging in de novo review, first discussed how the law of the case doctrine applied based on its previous ruling, thus precluding the defendants’ preliminary arguments that Cressman lacked standing. The Tenth Circuit also rejected defendants’ argument that because Cressman does not utilize the standard license plate at issue he does not have standing, finding instead that Cressman suffered an injury in fact by being forced to use the license plate, cover it illegally, or purchase a specialty plate at an extra cost. The Tenth Circuit also rejected defendants’ claim that the license plate was government speech, finding that private First Amendment rights could still be implicated because the license plates are “readily associated” with vehicle owners and the cars act as “mobile billboards” for the state.

Turning to the substance of the appeal, the Tenth Circuit characterized Cressman’s sole argument as whether he has been unconstitutionally compelled to speak by Oklahoma’s requirement that he either use the standard license plate with no modifications or purchase a specialty plate at extra cost. The Tenth Circuit found Cressman’s argument failed because he could not demonstrate that the Native American image was in fact the speech to which he objected. The Tenth Circuit found that although a reasonable observer might know the history of the image of the warrior shooting an arrow into the sky, that same reasonable observer would know that the image was chosen to further tourism in Oklahoma based on its history with Native Americans. Although Cressman argued it was “eminently reasonable” for an observer to associate the image with the pantheistic ideals of Native Americans, the Tenth Circuit disagreed. The Tenth Circuit concluded that the image conveyed the precise message intended by the Oklahoma task force — that Oklahoma’s history and culture has been strongly influenced by Native Americans — and found that it qualified as symbolic speech. Because Cressman expressly did not object to any message other than the pantheistic message, and because the message conveyed by the license plate was not that pantheistic message, the Tenth Circuit found he was not compelled to express a view to which he would otherwise object.

The Tenth Circuit affirmed the district court’s judgment in favor of the defendants. Judge McHugh concurred; she would have simplified the analysis pursuant to the Supreme Court’s ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015).

Tenth Circuit: Question of Whether Letter to Abortion Provider Conveyed “True Threat” Best Decided by Jury

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dillard on Tuesday, July 28, 2015.

In January 2011, Angel Dillard delivered a letter to Dr. Mila Means, a family practitioner in Wichita, Kansas, who had recently decided to start providing abortions. In her letter, Dillard warned Dr. Means that she should check under her car every day “because maybe today is the day someone places an explosive under it” and referenced Dr. Means’ friend, Dr. Tiller, who had been killed as he attended church services, warning that “if he could speak from hell” Dr. Tiller would advise her against providing abortions. Dr. Means’ office manager received the letter and immediately notified the police. A copy of the letter was also forwarded to the FBI; they interviewed Defendant but did not take any follow-up actions. Shortly after receiving the letter, a member of Dr. Means’ staff found an Associated Press article on the internet discussing how Defendant had recently befriended Dr. Tiller’s murderer and indicating that Defendant admired the killer for following his convictions and stopping abortions from happening in Wichita.

In April 2011, the government brought this civil enforcement action against Defendant, seeking fines and preliminary and permanent relief. The district court denied the government’s motion for a preliminary injunction. Defendant moved to dismiss, arguing the government lacked standing and could not show a violation of the Freedom of Access to Clinic Entrances Act of 1994 (FACE), which the district court denied. While the discovery process was ongoing, Defendant moved for summary judgment, arguing no reasonable person could have construed her letter as a true threat against Dr. Means because it did not threaten imminent violence or convey a likelihood of execution. The district court agreed and granted summary judgment. The government appealed and Defendant cross-appealed, arguing the district court should have granted her earlier motion to dismiss.

The Tenth Circuit, on de novo review, analyzed the strictures of FACE and its prior case law to determine whether the threat conveyed in Defendant’s letter was a “true threat.” The Tenth Circuit noted that it has consistently found that the fact-intensive inquiry necessary to determine whether a true threat is conveyed is properly determined by a jury. The Tenth Circuit evaluated the district court’s determination that the threat in Defendant’s letter was not a true threat because it was conditional, suggesting a bomb might be placed under Dr. Means’ car only if she did not reconsider her decision to provide abortion services. The Tenth Circuit found that a conditional threat could still qualify as a true threat. The Tenth Circuit likewise rejected the district court’s analysis that because the threat was not imminent it was not a true threat. The Tenth Circuit similarly found that a direct statement of personal intent is unnecessary to convey a true threat, noting “[a] defendant cannot escape potential liability simply by using the passive voice or couching a threat in terms of ‘someone’ committing an act of violence.” The Tenth Circuit determined that a jury could reasonably have found Defendant’s letter to convey a true threat and reversed the district court’s grant of summary judgment.

Defendant argued the Tenth Circuit could affirm on the alternate ground that the government presented no evidence that she subjectively intended to threaten Dr. Means. The Tenth Circuit was unpersuaded, noting frequently the most probative evidence is objective evidence of what actually happened rather than the subjective state of mind of the actor. The Tenth Circuit found the government presented evidence from which a jury could reasonably find Defendant intentionally mailed Dr. Means a letter containing a threat of violence.

The Tenth Circuit turned to Defendant’s cross-appeal, in which she argued the district court erred in denying her motion to dismiss because (1) the government lacked standing, (2) the First Amendment bars the action, (3) FACE violates the Commerce Clause both facially and as applied, and (4) the RFRA prevents this application of FACE. The Tenth Circuit quickly dismissed the first argument, finding the government’s standing is not derivative of the victim’s and the government has standing as long as it has reason to believe someone is, has been, or could be injured by conduct proscribed by the statute. As to the second argument, the Tenth Circuit found the district court correctly held the First Amendment’s definition of “true threat” is coterminous with FACE’s definition of “threat” so any conviction under FACE would necessarily fall outside the First Amendment’s protections. Defendant failed to raise her Commerce Clause and RFRA arguments below, so the Tenth Circuit declined to address them on appeal.

The Tenth Circuit briefly addressed the parties’ motions to seal portions of the record on appeal. These were granted in part and denied in part.

The district court’s grant of summary judgment was reversed and remanded for further proceedings. The district court’s denial of Defendant’s motion to dismiss was affirmed. The record was sealed in part with instructions. Judge Baldock wrote a thoughtful dissent; he would have affirmed the grant of summary judgment because Defendant’s “ill-advised” letter conveyed a threat that was conditional, not imminent, and impersonal.

Tenth Circuit: No Fundamental Right Exists to Limitless Taxation in Order to Fund Education

The Tenth Circuit Court of Appeals issued its opinion in Petrella v. Brownback on Monday, June 1, 2015.

Plaintiffs, parents of students in the relatively wealthy Shawnee Mission School District (SMSD) in Kansas, sued various Kansas officials in U.S. District Court in 2010, seeking to enjoin enforcement of Kansas’ cap on local property taxes for education. The district court dismissed their suit for lack of standing, but the Tenth Circuit reversed in an opinion limited to the sole issue of standing. The district court dismissed Plaintiffs’ claims that the tax cap is subject to heightened scrutiny but allowed the rational basis claims to proceed. Plaintiffs filed a motion to reconsider and a notice of appeal. When the district court denied the motion for reconsideration, plaintiffs again appealed. The Tenth Circuit consolidated the appeals.

Plaintiffs sought relief as to four district court rulings: (1) the denial of Plaintiffs’ motion for a preliminary injunction; (2) denial of Plaintiffs’ motion for summary judgment; (3) partial grant of Defendants’ motion to dismiss; and (4) denial of Plaintiffs’ motion for reconsideration. First addressing jurisdiction, the Tenth Circuit found it lacked jurisdiction to consider the denial of Plaintiffs’ motion for summary judgment. Next, the Tenth Circuit considered whether Plaintiffs’ claims were moot because of subsequent amendments to Kansas’ school financing system, and found they were not, since the slight increases to the budget cap did not ameliorate their claims that the cap burdened their constitutional rights. The Tenth Circuit proceeded to address the merits of Plaintiffs’ claims.

The district court concluded Plaintiffs were unlikely to prevail on their claims that the budget cap violated their First Amendment rights, burdens their fundamental rights, imposes an unconstitutional condition, and denies them equal protection. The Tenth Circuit agreed. Plaintiffs argued the budget cap violated their First Amendment rights because education is speech and the budget cap burdens education, therefore the budget cap burdens speech. The Tenth Circuit found each premise seriously flawed, and noted that no court has recognized that a limit on public funding for education constitutes a limit on speech. Plaintiffs argued the budget cap limits their free association rights because it prevents them from coming together as a community to vote to raise property taxes for education at the district level. However, the Tenth Circuit found that there is no First Amendment right to a voter initiative, and Plaintiffs were free to raise funds for the school district privately, which they did.

As to Plaintiffs’ argument that the cap violates their civil liberties, the Tenth Circuit found there is no fundamental right to tax one’s neighbors without limitation in order to fund education. Plaintiffs also argued the cap undermines their right to direct the education of their children, but the Tenth Circuit reiterated that there is no fundamental liberty interest in setting public policy for public education funding, and the cap only prevents Plaintiffs from compelling their neighbors to vote on a tax increase. As to Plaintiffs’ argument that the cap burdens their fundamental voting rights, the Tenth Circuit again disagreed, finding that precedential case law only scrutinized who may be subject to voting restrictions, not which topics may be restricted.

The Tenth Circuit similarly dismissed Plaintiffs’ argument that the cap should be reviewed under heightened scrutiny because it denies them equal protection of the law in a base desire to harm them, holding that wealth, or residence in a wealthy school district, is not a suspect class subject to heightened scrutiny. The district court dismissed Plaintiffs’ various claims that the budget cap should be reviewed under heightened scrutiny, and the Tenth Circuit affirmed this dismissal.

The Tenth Circuit dismissed Plaintiffs’ challenge to the district court’s denial of summary judgment, and otherwise affirmed and remanded for further proceedings.