Christensen v. Park City Mun. Corp.

• Decision Date: 06 February 2009
• Docket Number: No. 07-4273.,07-4273.
• Citation: 554 F.3d 1271
• Parties: Shaun L. CHRISTENSEN, Plaintiff-Appellant, v. PARK CITY MUNICIPAL CORPORATION, a government entity; Shauna Stokes, Park City Code Enforcement Officer; Ron King, Wayne Young, Park City Police Officers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

554 F.3d 1271

Shaun L. CHRISTENSEN, Plaintiff-Appellant, v. PARK CITY MUNICIPAL CORPORATION, a government entity; Shauna Stokes, Park City Code Enforcement Officer; Ron King, Wayne Young, Park City Police Officers, Defendants-Appellees.

No. 07-4273.

United States Court of Appeals, Tenth Circuit.

February 6, 2009.

Submitted on the briefs.^* Shaun L. Christensen, appearing pro se.

Peter Stirba, Meb W. Anderson, Stirba & Associates, Salt Lake City, UT, for Defendants-Appellees.

Before O'BRIEN, BRORBY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

This case involves the enforcement of municipal ordinances forbidding any person, with certain exceptions, from selling goods or merchandise on the streets, in the parks, or on other city property against a visual artist selling his own work.¹

I. Background

According to the first amended complaint, which for purposes of this appeal of the grant of a motion to dismiss we assume to be true, Plaintiff-Appellant Shaun L. Christensen is a "visual artist" who "creates and makes prints which he displays and sells." He "generates and welcomes income from the sale of his work." R. Vol. III, Doc. 29 at 4, First Amended Complaint, ¶ 12. From time to time, Mr. Christensen has attempted to display his artwork and offer it for sale at a local park and on the streets of Park City, Utah. A local ordinance, however, forbids "any person," unless "specifically licensed" to do so, "to solicit business within any public street, sidewalk, alleyway, within the public parks, golf course, or publicly owned parking areas" in Park City without prior approval and execution of a concession contract with the City. Park City Ord. § 4-3-3. A related ordinance confines all "businesses" in Park City to "within a fully enclosed building." Id., § 4-3-2. Local "civic organizations, such as Boy Scouts, Girl Scouts, historic preservation groups, schools, museums, not-for-profit organizations, or other charities" are exempt from licensing. Id., § 4-3-16(C). It is not clear from the face of the ordinances whether they are also exempt from the prohibition on outdoor businesses, but the plaintiff's complaint alleges that they are. The City permits licensed Park City businesses, other than restaurants, to conduct outdoor sales on their own property and adjoining streets or sidewalks on a temporary basis five times a year. Id., § 4-3-10.

On several occasions starting during the Winter Olympics in 2002, Mr. Christensen displayed and attempted to sell his artwork on public property in Park City, most often in Miners' Pocket Park, a small public park in the restored historic commercial district of the resort city. He was told by Park City law enforcement officers, the individual defendants here, that under city ordinances he could display, but could not sell, his work and that he could be cited and/or arrested for violating this restriction. Matters came to a head in January 2004. According to the complaint, he was approached by Officer Shauna Stokes, a city employee charged with enforcing ordinances, who again told him he was in violation of the ordinances by conducting business outdoors without a license and would be cited or arrested unless he stopped. Mr. Christensen told her that he had a First Amendment right to display and sell his artwork and refused to leave. Officers Ron King and/or Wayne Young arrived sometime later, and after a brief discussion, they arrested Mr. Christensen. He was released from jail three days later after posting a bond. Eventually, the charges were dismissed.

Represented by counsel, Mr. Christensen filed suit in federal district court, seeking damages and declaratory relief against the officials in both their individual and their official capacities, as well as the City of Park City, claiming violations of his rights under the First Amendment, the Equal Protection Clause, and the Fourth Amendment. The defendants filed a motion to dismiss, which the district court granted in two separate orders.

The first order, dated September 15, 2006, concerns Mr. Christensen's claims against the officers in their individual capacities and their concomitant rights to qualified immunity. The district court held it "need not determine the exact parameters of the First Amendment protection for sale of expressive art work because of the vagueness of [Mr. Christensen's] allegations." R. Vol. III, Doc. 27 at 6. Specifically, the court held that "his allegations do not identify the material at issue." Id. at 4. Citing several cases from other jurisdictions, and relying especially on the Second Circuit's decision in Bery v. New York, 97 F.3d 689, 696 (2d Cir.1996), the district court concluded that only certain types of artwork—"paintings, photographs, prints, and sculptures"—were presumptively "expressive" and so within the protection of the First Amendment. R. Vol. III, Doc. 27 at 4-7, citing, in addition to Bery, Mastrovincenzo v. New York, 435 F.3d 78, 94-96 (2nd Cir.2006); White v. City of Sparks, 341 F.Supp.2d 1129, 1138-39 (D.Nev.2004), and Celli v. City of St. Augustine, 214 F.Supp.2d 1255, 1258-59 (M.D.Fla.2000). Because Mr. Christensen's complaint did not contain any allegations regarding the nature of his works, which might place them within one of Bery's four categories of artwork, the district court found the complaint "insufficient to show that their sale is protected activity under the First Amendment." R. Vol. III, Doc 27 at 7. The court further found that it would be futile to allow Mr. Christensen to amend his complaint to adequately plead a constitutional violation because "the case law relied upon by [Mr. Christensen] was not `clearly established' in January 2004 [the date of the incident]," id. at 8, thus entitling the individual defendants to qualified immunity. The court also dismissed the plaintiff's equal protection and Fourth Amendment claims, finding them derivative of the First Amendment claim. Id. at 11-12.

As to the claims against Park City, the district court granted the plaintiff's motion to amend his complaint. Id. at 13-14. In an order dated October 3, 2007, the court held that Christensen's amended complaint failed to state claims against Park City because "his allegations do not allege enough facts to show a claim of a municipal policy or custom ... that is `plausible on its face.'" Id., Doc. 45 at 4 (quotation marks omitted). Noting that the plaintiff had not contended that the ordinances enforced against him were "unconstitutional,"² id. at 2, and thus that his claim of a constitutional violation must be based on the ordinances having been "enforce[d] ... in an unconstitutional manner," id. at 4, the district court dismissed the claims against the city on the ground that the officers who enforced the ordinances were not "official policy makers." Id. A municipality may not be held liable under § 1983 for the acts of its employees unless they are policy makers or unless the municipality itself has adopted an unconstitutional law, custom, or policy. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481-483, 481 n. 10, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)

Mr. Christensen, now representing himself without assistance of counsel, appeals both orders of dismissal. We affirm the district court's holding that the individual defendants are entitled to qualified immunity because they did not violate a constitutional right that was clearly established at the time of their action. We reverse as to municipal liability against the city, and remand for determination of the proper constitutional principles and further determination of the facts if necessary.

II. Sufficiency of the Complaint Against the Individual Officers

"This court reviews de novo the district court's grant of a motion to dismiss pursuant to Rule 12(b)(6), applying the same legal standard applicable in the district court." Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir.2007). "In reviewing a motion to dismiss, this court must look for plausibility in the complaint. Under this standard, a complaint must include enough facts to state a claim to relief that is plausible on its face." Id. (citations and internal quotation marks omitted). "The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008).

The district court found it unnecessary to "determine the exact parameters of the First Amendment protection for sale of expressive art work because of the vagueness of [Mr. Christensen's] allegations." As explained above, the district court operated on the assumption, based on its reading of cases from courts in other circuits, that the sale of artwork on public streets and property is presumptively "expressive" (and so entitled to constitutional protection) if the artwork falls into one of the four categories of art identified in Bery: "paintings, photographs, prints, and sculptures." R. Vol. III, Doc. 27 at 4-5. The district court regarded the plaintiff's complaint too "vague" to state a claim on the ground that it failed to "identify the material at issue." Id., at 4, 6. The court also ruled that the individual officers were in any event entitled to qualified immunity because the constitutional violation, if any, was not clearly established at the time of their actions. Because this alternative ground would preclude a finding of liability against the officers even if the plaintiff amended his complaint to eliminate its vagueness, the court denied leave to amend and dismissed the suit against the officers.

We do not agree with the district court's first rationale for dismissal, the vagueness of the complaint. The complaint alleged that Mr. Christensen "is a visual artist. His art work has been displayed at various art festivals, galleries, shows, etc. in Utah." R. Vol. II, Doc. 3 at 4, Complaint, ¶ 12. If the First Amendment principles set forth by the Second...