593 F.3d 1163 (10th Cir. 2010), 09-1085, Weise v. Casper

Docket Nº:09-1085.
Citation:593 F.3d 1163
Opinion Judge:PAUL KELLY, Jr., Circuit Judge.
Party Name:Leslie WEISE; Alex Young, Plaintiffs-Appellants, v. Michael CASPER, in his individual capacity; Jay Bob Klinkerman, in his individual capacity, Defendants-Appellees, and Greg Jenkins, in his individual capacity; Steven A. Atkiss, in his individual capacity; James A. O'Keefe, in his individual capacity and John/Jane Does 1-2, both in their individua
Attorney:Christopher Hansen (and Catherine Crump of American Civil Liberties Union, New York, NY; Mark Silverstein of American Civil Liberties Union of Colorado, Denver, CO; Martha M. Tierney and Jerremy M. Ramp of Kelly, Haglund, Garnsey & Kahn, L.L.C, In cooperation with the ACLU Foundation of Colorado,...
Judge Panel:Before TACHA, HOLLOWAY, and KELLY, Circuit Judges. HOLLOWAY, J., dissenting.
Case Date:January 27, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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593 F.3d 1163 (10th Cir. 2010)

Leslie WEISE; Alex Young, Plaintiffs-Appellants,

v.

Michael CASPER, in his individual capacity; Jay Bob Klinkerman, in his individual capacity, Defendants-Appellees,

and

Greg Jenkins, in his individual capacity; Steven A. Atkiss, in his individual capacity; James A. O'Keefe, in his individual capacity and John/Jane Does 1-2, both in their individual capacities, Defendants.

No. 09-1085.

United States Court of Appeals, Tenth Circuit.

January 27, 2010

Page 1164

Christopher Hansen (and Catherine Crump of American Civil Liberties Union, New York, NY; Mark Silverstein of American Civil Liberties Union of Colorado, Denver, CO; Martha M. Tierney and Jerremy M. Ramp of Kelly, Haglund, Garnsey & Kahn, L.L.C, In cooperation with the ACLU Foundation of Colorado, Denver, CO, on the briefs), for Plaintiffs-Appellants.

Sean Gallagher (and Dugan Bliss of Hogan & Hartson, L.L.P., with him on the brief), Denver, CO, for Appellee, Casper.

Brett Lilly of Brett R. Lilly, L.L.C., Wheat Ridge, CO, (John S. Zakhem and Matthew Cassady of Zakhem & Atherton, L.L.C., Denver, CO, on the brief), for Appellee, Klinkerman.

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Before TACHA, HOLLOWAY, and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Plaintiffs-Appellants Leslie Weise and Alex Young appeal from the district court's dismissal of their Bivens complaint against certain defendants. Ms. Weise and Mr. Young brought this action claiming violations of their First Amendment rights. In ruling on pretrial motions, the district court held that Defendants-Appellees Michael Casper and Jay Bob Klinkerman were entitled to qualified immunity. Weise v. Casper, No. 05-cv-02355-WYD-CBS, 2008 WL 4838682 (D.Colo. Nov.6, 2008). At the parties' request, it then certified its order as a final order pursuant to Fed.R.Civ.P. 54(b). Aplt.App. 152-53. Our jurisdiction arises under 28 U.S.C. § 1291. Because the constitutional right asserted by the Plaintiffs was not clearly established at the time of the alleged violation, we affirm the grant of qualified immunity.

Background

Although our prior decision in this case set out most of the operative facts, Weise v. Casper, 507 F.3d 1260, 1262-63 (10th Cir.2007), later proceedings have better developed the factual record.

The Plaintiffs' suit arises from their attendance at President George W. Bush's March 21, 2005 speech at the Wings Over the Rockies Museum. Aplt.App. 16. The President's speech was an official government event, funded by the government. Id. White House policies and procedures established who could attend. Id. Sometime before the President's speech, the White House Advance Office established a policy of excluding those who disagree with the President from the President's official public appearances. Id. at 18. The Defendants were present at the event, carrying out the White House's instructions and policies. Id. at 20.

The White House made tickets available to any member of the public. Aplt.App. 16. The Plaintiffs obtained tickets from the office of Congressman Bob Beauprez by showing their driver's licenses and writing down their names. Id. On March 21, 2005, Ms. Weise and Mr. Young drove to the event in Ms. Weise's vehicle, which sported a " No More Blood For Oil" bumper sticker. Id. at 17.

Although Mr. Young passed through security without incident, Mr. Klinkerman, a volunteer working for the White House, approached Ms. Weise and told her that she had to wait for the Secret Service to speak with her. Aplt.App. 17. Mr. Casper arrived minutes later wearing a suit, earpiece, and lapel pin. Id. at 18. Mr. Casper told Ms. Weise that " she had been ‘ ID'd’ " based on the bumper sticker, and " that if she had any ill intentions" or " tried any ‘ funny stuff’ that [she] would be arrested, but that he was going to let [her] in." Id.

Mr. Casper let Ms. Weise into the event, but then consulted with Defendants Steven A. Atkiss and James A. O'Keefe, White House Advance Office employees. Aplt.App. 165. Mr. Atkiss and Mr. O'Keefe instructed Mr. Casper to eject Plaintiffs from the event. Id. Mr. Casper then approached Plaintiffs at their seats and asked them to leave. Id. at 19. Plaintiffs were escorted from the event and not allowed to reenter. Id. at 19-20. The Secret Service confirmed to Plaintiffs that they were asked to leave because of the bumper sticker on Ms. Weise's vehicle. Id. at 20, 166-67.

Plaintiffs claim that they never disrupted the event, intended to disrupt the event, or indicated that they would disrupt the event. Aplt.App. 20. Mr. Young would

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have asked the President a question, if given the opportunity. Id. at 17.

This case is before us for the second time. In the first appeal, Defendants challenged the district court's denial of qualified immunity. Weise, 507 F.3d at 1261. Because a factual question existed as to whether Defendants could assert the qualified immunity defense, we dismissed the interlocutory appeal for lack of jurisdiction. Id. at 1264-68.

While the first appeal was pending, Plaintiffs deposed Mr. Casper and Mr. Klinkerman, revealing the roles of Defendants Jenkins, Atkiss, and O'Keefe. Aplt. Br. at 6; Aplt.App. 10. Because the statute of limitations was about to run, Plaintiffs filed a separate suit against these three Defendants, which was later consolidated into the original suit against Mr. Casper and Mr. Klinkerman. Aplt. Br. at 6; Aplt.App. 10. When the case returned to the district court, Mr. Casper and Mr. Klinkerman again filed motions to dismiss based on qualified immunity. Aplt.App. 23-56. The discovery obtained since the first motion to dismiss resolved the outstanding factual question and demonstrated that Mr. Casper and Mr. Klinkerman were governmental actors entitled to invoke the defense of qualified immunity. Weise, 2008 WL 4838682, at *5. The district court then granted Mr. Casper and Mr. Klinkerman's motions to dismiss based on qualified immunity. Aplt.App. 150-51. It also granted Defendant Jenkins's motion to dismiss for lack of personal jurisdiction. Id.

Discussion

This court reviews de novo a district court's grant of a motion to dismiss based on qualified immunity. Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir.2008). Well-pleaded factual allegations are taken as true, but a court must also consider whether " they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). Dismissal is not appropriate where " the complaint contains ‘ enough facts to state a claim to relief that is plausible on its face.’ " Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Facial plausibility requires sufficient factual content (as opposed to legal conclusions) suggesting " that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.

A preliminary question is whether Defendants, as volunteers acting under close government supervision, may assert the defense of qualified immunity. Before the first appeal, the district court held that Defendants could assert qualified immunity if they were acting under the close supervision of federal officials. Weise v. Casper, No. 05-cv-02355-WYD-CBS, 2006 WL 3093133, at *4 (D.Colo. Oct.30, 2006). Plaintiffs concede that Defendants acted under the close supervision of White House officials at the Wings Over the Rockies event. Aplt.App. 16-21, 58; Weise, 2008 WL 4838682, at *5. On appeal, Plaintiffs do not challenge Defendants' assertion of the qualified immunity defense. Therefore, it is unnecessary to reach the issue.

Qualified immunity " protects governmental officials 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.’ " Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The qualified immunity inquiry has two prongs:

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whether a constitutional violation occurred, and whether the violated right was " clearly established" at the time of the violation. Pearson, 129 S.Ct. at 816.

In their discretion, courts are free to decide which prong to address first " in light of the circumstances of the particular case at hand." Pearson, 129 S.Ct. at 818. The Pearson Court recognized that skipping the constitutional violation question may conserve judicial resources in " cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right." Id. Some cases are so fact-bound that deciding the constitutional question offers " little guidance for further cases." Id. at 819. Further, proceeding directly to the " clearly established" question may avoid the risk of deciding a case incorrectly given insufficient briefing on the constitutional violation question. Id. at 820. Although it is unclear whether Defendants' alleged conduct violated Plaintiffs' constitutional rights, it is obvious that the rights were not clearly established at the time of the violation.

" [F]or a right to be clearly established, ‘ there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.’ " Cortez v. McCauley, 478 F.3d 1108, 1114-15 (10th Cir.2007) (en banc) (quoting Medina v. City of Denver, 960 F.2d 1493, 1498 (10th Cir.1992)). The qualified immunity doctrine does not require a case exactly on point. " Clearly established" does not mean " that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of...

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