998 F.2d 867 (10th Cir. 1993), 90-1016, Cannon v. City and County of Denver

• Citation: 998 F.2d 867
• Party Name: Joan CANNON and Leila Jeanne Hill, Plainntiffs-Appellants, and Terry Sullivan and Ray C. Williams, Proposed Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER; D.M. Ryan, individually and as a police officer; D.C. Baca, individually and as a police officer; The Police Department of the City and County of Denver, Defendants-Appellees.
• Case Date: July 12, 1993
• Court: United States Courts of Appeals, U.S. Court of Appeals — Tenth Circuit

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998 F.2d 867 (10th Cir. 1993)

Joan CANNON and Leila Jeanne Hill, Plainntiffs-Appellants,

and

Terry Sullivan and Ray C. Williams, Proposed Plaintiffs-Appellants,

v.

The CITY AND COUNTY OF DENVER; D.M. Ryan, individually and

as a police officer; D.C. Baca, individually and as a

police officer; The Police Department of the City and

County of Denver, Defendants-Appellees.

No. 90-1016.

United States Court of Appeals, Tenth Circuit

July 12, 1993

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[Copyrighted Material Omitted]

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C. Peter Thomas S. Cornell of Free Speech Advocates, New Hope, KY (Jay Alan Sekulow, Thomas Patrick Monaghan and Walter M. Weber of Free Speech Advocates, New Hope, KY, and Charles J. Onofrio, Denver, CO, with him on the brief), for plaintiffs-appellants and proposed plaintiffs-appellants.

Theodore S. Halaby, Denver, CO (Robert M. Liechty, Denver, CO, with him on the brief), for defendants-appellees.

Before SEYMOUR, HOLLOWAY and ANDERSON, Circuit Judges.

HOLLOWAY, Circuit Judge.

The plaintiffs-appellants Joan Cannon (Cannon) and Leila Jeanne Hill (Hill) brought this action under 42 U.S.C. § 1983 against the City and County of Denver and individual police officers Donna Ryan-Fairchild (Ryan-Fairchild) and Paul Baca (Baca), who arrested them for disturbing the peace when they were carrying signs reading "The Killing Place" outside a Denver abortion clinic. Plaintiffs alleged that their arrests violated their First Amendment rights and they also asserted a number of state tort claims. The district court granted summary judgment for the defendants as to Cannon's and Hill's federal claims and then exercised its discretion and dismissed the pendent state claims without prejudice. The court denied a motion for reconsideration and a motion for leave to amend the complaint. Appeal was timely taken to this court.

I

On January 26, 1988, Officers Baca and Ryan-Fairchild arrested Cannon and Hill during an anti-abortion protest on a sidewalk in front of a clinic operated by Rocky Mountain Planned Parenthood. The clinic had been the object of long-standing, regular protests during the previous months. Hill had herself been arrested some months before and charged with trespass and assaulting a patient. On the day in question Officer Ryan-Fairchild was off duty, but in uniform, and was serving as a private security guard hired by the clinic. Officer Baca had been passing by the scene when he stopped to monitor the protest.

A number of protestors were marching along the sidewalk in front of the building. Some were carrying signs with the words "The Killing Place." People entering the clinic could see these signs and at one point a man accompanying a patient to the clinic began shouting at the protestors and was physically restrained by Officer Ryan-Fairchild. Ryan-Fairchild said that about a week earlier she contacted Officer Yates on another matter and Yates told Ryan-Fairchild that Denver County Court Judge Soja had commented that words tending to incite would be fighting words: "In other words, saying baby killer, murderer, killing in any regard." Officer Ryan-Fairchild said she was told that Judge Soja had made a ruling about disturbances at the clinic and this was his ruling. I R. Doc. 7, Ex. B at 8. Ryan-Fairchild communicated this information to Officer Baca. As we explain later, infra note 8, the judge described his statements differently, saying he did not make a "ruling" on the subject. After Cannon and Hill refused the officers' request to cover the words "The Killing Place" on their signs, the officers arrested them. Cannon and Hill were charged with disturbing the peace in violation of Denver Revised Code § 38-89 and were both incarcerated for approximately eight hours. The charges were later voluntarily dismissed.

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In the district court plaintiffs sought damages under 42 U.S.C. § 1983 for violation of their First Amendment rights and declaratory and injunctive relief under 28 U.S.C. § 2201. The complaint also averred state tort claims of false arrest, false imprisonment, assault and battery, tortious violation of state constitutional rights, intentional infliction of emotional distress, and malicious prosecution. ¹

After discovery, the defendants moved for summary judgment. In his order granting summary judgment for defendants on the § 1983 federal claims, the district judge analyzed the claims, stating that "[t]he contours of First Amendment freedoms are organic and difficult, if not impossible, to pinpoint." Order of Dismissal at 8. The court found that the officers did not act in violation of clearly established law. It therefore concluded that the officers were entitled to qualified immunity. The court also determined that neither the Police Department nor the City and County of Denver could be held liable under § 1983 because there was not a sufficient showing that the claimed deprivation of First Amendment rights was the result of a municipal "policy or custom." See Monell v. New York City Dep't of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978).

Having granted summary judgment for defendants on the federal claims, the court exercised its discretion to dismiss the remaining pendent state claims without prejudice.

II

On appeal, plaintiffs argue that the district judge erred in granting summary judgment for defendants, making two basic errors: (1) the judge erred in holding that the individual defendants, Officers Ryan-Fairchild and Baca, were entitled to qualified immunity, the asserted constitutional rights of plaintiffs not being clearly established; and (2) the judge erred in holding that summary judgment should be granted for the City and County of Denver on the basis that "[a]s a matter of law this court finds that the City of Denver has not established a custom or policy of arresting citizens who engage in this type of conduct." Order of Dismissal at 12.

We review de novo the district court's grant of summary judgment, using the same legal standard as the trial court. Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate when the evidence indicates that there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). In examining the record we view the evidence in the light most favorable to the party opposing summary judgment. Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991).

A

Section 1983 provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State[,] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.

The Supreme Court has held that government officials performing discretionary functions "generally are shielded 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." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Chapman v. Nichols, 989 F.2d 393, 397 (10th Cir.1993) ("official is protected from personal liability if his allegedly unlawful official action was objectively reasonable when assessed in light of legal rules that were clearly established when the action was taken") (citing Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)). If the law was clearly established, the immunity

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defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. "Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained." 457 U.S. at 819, 102 S.Ct. at 2738. This circuit has required that "extraordinary circumstances" of the type claimed here--legal advice in effect--be such that defendant was so "prevented from knowing that his actions were unconstitutional that he should not be imputed with knowledge of an admittedly clearly established right." V-1 Oil Co. v. Wyoming Dept. of Envtl. Quality, 902 F.2d 1482, 1488 (10th Cir.), cert. denied, 498 U.S. 920, 111 S.Ct. 295, 112 L.Ed.2d 249 (1990) (internal citations and quotation marks omitted).

The defendant officers here rely on both of the qualified immunity theories outlined above. First, they say the First Amendment rights of plaintiffs which the officers allegedly violated were not clearly established law at the time of the 1988 arrests. Second, they argue that they had been told of a legal ruling or advice which they relied on in good faith. We will consider both theories in turn, discussing first whether plaintiffs' rights were clearly established at the time of their arrests. Later we treat the theory of legal advice relied on as the "extraordinary circumstances" defense referred to in Harlow and analyzed by this court in V-1 Oil.

Thus we turn first to the question whether the constitutional rights alleged to have been violated here were "clearly established." ² "That determination is purely legal." National Black Police Ass'n, Inc. v. Velde, 712 F.2d 569, 574 (D.C.Cir.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2180, 80 L.Ed.2d 562 (1984). The First Amendment to the Constitution provides in part that "Congress shall make no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble." These rights have long been made applicable to the states by the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138 (1925) (speech); DeJonge v. Oregon, 299 U.S. 353,...