In Saved Magazine v. Spokane Police Department, published December 9, 2021, the 9th Circuit affirmed summary judgment in favor of a police officer and the city that employed him. At a library's children's book reading event called "Drag Queen Story Hour," the police separated protesters and counterprotesters into separate zones near the library. The plaintiff, wearing a press badge, identified himself to police as a member of the press. The defendant officer escorted the plaintiff to the entrance of the library, and warned him he would be subject to arrest if he stated "engaging people" or caused "a problem," but that he could "act as the press and report on" the event. The plaintiff alleged that he was assigned a police detail to accompany him through a crowd of counterprotesters out of concern he was "fake press." The defendant officer allegedly alerted all units that the plaintiff had been arrested at a previous protest, and would be allowed to move freely through the event until he started causing problems; and that the plaintiff had been warned that he was subject to arrest if he did so. While the plaintiff was walking through the counterprotesters, he answered questions from a counterprotester. An officer then told the plaintiff he was not exercising his press rights, but engaging a protester. The plaintiff stated he wanted to walk through the counterprotesters, and the officer directed counterprotesters to get out of the way and let the plaintiff walk through the zone. The plaintiff sued the city, the police department, the defendant officer, and others, alleging violation of his First Amendment rights.
The court of appeals ruled that the district court had correctly granted the officer summary judgment based on the second prong of qualified immunity--that the defendant's actions did not violate clearly established law. No precedent established that a police officer violated an individual's First Amendment rights by enforcing a city's establishment of protester and counterprotester zones, particularly since the plaintiff did not allege the separation itself was unconstitutional. The claim against the city failed because the plaintiff had failed to plausibly allege a custom, policy, or practice of the city that led to a constitutional violation.
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