Saved Magazine v. Spokane Police Department

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAVED MAGAZINE, a Washington No. 20-36073

limited liability company; AFSHIN

YAGHTIN, and the marital D.C. No.

community thereof; MARY FELL 2:20-cv-00024-

YAGHTIN, and the marital RMP

community thereof,

Plaintiffs-Appellants,

OPINION

v.

SPOKANE POLICE DEPARTMENT;

CRAIG N. MEIDL, in his official and

personal capacity; JANE DOE, and the

marital community thereof; JOHN

DOE, and the marital community

thereof,

Defendants-Appellees,

and

CITY OF SPOKANE, a municipal

corporation in and for the State of

Washington; SPOKANE PUBLIC

LIBRARY; KEVIN VAUGHN, and the

marital community thereof; JANE

DOE VAUGHN, and the marital

community,

Defendants.

2 SAVED MAGAZINE V. SPOKANE POLICE DEP’T

Appeal from the United States District Court

for the Eastern District of Washington

Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted October 4, 2021

Seattle, Washington

Filed December 9, 2021

Before: A. WALLACE TASHIMA, MILAN D. SMITH,

JR., and JACQUELINE H. NGUYEN, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY *

Civil Rights

The panel affirmed the district court’s dismissal of an

action brought pursuant to 42 U.S.C. § 1983 by Afshin

Yaghtin and Saved Magazine alleging that Spokane police

officers violated plaintiffs’ First Amendment rights when

they prevented Yaghtin, acting as a journalist at a public

event, from “engaging in dialogue with a protester” under

threat of arrest.

In June 2019, the Spokane Public Library hosted a

children’s book reading event called “Drag Queen Story

Hour.” Because the library event proved controversial, the

police separated 150 protesters and 300 counterprotesters

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

SAVED MAGAZINE V. SPOKANE POLICE DEP’T 3

into separate protest and counterprotest zones near the

library. Yaghtin arrived at the event wearing a press badge

and identified himself to police officers as a member of the

press. Yaghtin alleges he was assigned a police “detail” to

accompany him through a crowd of counterprotesters out of

concern that he was “fake press.” While Yaghtin was

walking through the counterprotest zone, he began to

converse with a counterprotester, who had asked him

whether he was the person that had previously advocated for

the execution of gay people. Officer Doe interrupted the

exchange, and then escorted Yaghtin through the

counterprotest zone.

The panel held that Officer Doe was entitled to qualified

immunity under the second prong of the qualified immunity

analysis, which asks whether the constitutional right was

clearly established at the time of defendant’s alleged

misconduct. The panel noted that plaintiffs did not challenge

a city ordinance or permit scheme, and they expressly did

not challenge the Spokane Police Department’s use of

separate protest zones. Instead, plaintiffs’ challenge was

directed at Officer Doe’s enforcement of these zones. The

panel was not aware of any precedent that would alert

Officer Doe that his enforcement would violate clearly

established First Amendment law. Considering the lack of

any precedent to the contrary, it was not unreasonable for

Officer Doe to believe that it was lawful for him to examine

the substance of Yaghtin’s speech in order to enforce the

separate protest zone policy.

The panel held that the City of Spokane could not be held

liable because even assuming Spokane police officers

violated Yaghtin’s First Amendment rights, nothing in the

complaint plausibly alleged a policy, custom, or practice

leading to that violation. Plaintiffs’ allegations amounted to

4 SAVED MAGAZINE V. SPOKANE POLICE DEP’T

no more than an “isolated or sporadic incident” that could

not form the basis of liability under Monell v. New York City

Department of Social Services, 436 U.S. 658 (1978).

COUNSEL

Kevin T. Snider (argued), Pacific Justice Institute,

Sacramento, California; Tracy Tribbett, Pacific Justice

Institute, Paco, Washington; for Plaintiff-Appellant.

Taki V. Flevaris (argued), Alanna Peterson, and Gregory J.

Wong, Pacifica Law Group, Seattle, Washington; Salvatore

J. Faggiano, Office of the City Attorney, Spokane,

Washington; for Defendants-Appellees.

SAVED MAGAZINE V. SPOKANE POLICE DEP’T 5

OPINION

M. SMITH, Circuit Judge:

Plaintiffs Afshin Yaghtin and Saved Magazine allege

that Spokane police officers violated their First Amendment

rights when they prevented Yaghtin, acting as a journalist at

a public event, from “engaging in dialogue with a protester”

under threat of arrest. We affirm the district court’s order

dismissing this case with prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

I.

In June 2019, the Spokane Public Library hosted a

children’s book reading event called “Drag Queen Story

Hour.” The event proved controversial, so the police

separated approximately 150 protesters and 300

counterprotesters into separate protest and counterprotest

zones near the library. The protesters gathered to express

their “concern about the drag queens” and their opposition

to the library’s sponsoring the event. Counterprotesters

gathered in support of the event.

Yaghtin is both the chief editor of and a journalist for

Saved Magazine, and sought to cover the Drag Queen Story

Hour event for an edition of an upcoming quarterly

periodical. He arrived fifteen minutes before the event

began wearing a press badge, and identified himself to police

officers as a member of the press. Yaghtin stated that he

intended to interview protesters and counterprotesters for his

upcoming story. Spokane Police Officer Vaughn

acknowledged Yaghtin’s claim that he was a member of the

press and escorted him to the entrance of the library.

6 SAVED MAGAZINE V. SPOKANE POLICE DEP’T

Officer Vaughn then warned Yaghtin that he would be

subject to arrest if he started “engaging people” or caused “a

problem,” but told Yaghtin if he wanted to “act as the press

and report on [the event], you can do that.” An individual

accompanying Yaghtin then asked Officer Vaughn what

would happen if a counterprotester began attacking Yaghtin,

and Officer Vaughn replied, “the same thing applies to them,

if they are causing problems then they will go to jail.” 1

Officer Vaughn also warned Yaghtin that he might have

problems with counterprotesters “saying things because they

know you were arrested last week, so people are going to say

things.” 2

Yaghtin alleges he was assigned a police “detail” to

accompany him through a crowd of counterprotesters out of

concern that he was “fake press.” After speaking with

Yaghtin, Officer Vaughn alerted “all units” that the subject

who “was arrested last time is on scene with a press pass,

[and] will be allowed to move freely throughout the event on

1

On review, we treat as true facts alleged in the amended complaint,

including four videos depicting the underlying incident that the district

court held were incorporated by reference into the complaint. Plaintiffs

did not challenge the district court’s ruling on this issue, and do not try

to do so on appeal.

2

Plaintiffs’ amended complaint quotes from, and provides a

hyperlink to, a newspaper article with additional factual background

about the Drag Queen Story Hour event, which Defendants submitted as

an exhibit to their motion to dismiss. The article suggests that the book

reading event described in the amended complaint was the second of two

similar events, and that Yaghtin had been arrested during the first event.

The district court did not refer to this article, and we do not rely on any

facts therein for the disposition of this case, so it is unnecessary to

determine the extent to which the incorporation-by-reference doctrine

might apply. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988,

1002 (9th Cir. 2018).

SAVED MAGAZINE V. SPOKANE POLICE DEP’T 7

both sides, until he starts causing problems with either

group. He’s been warned if he does that, then he’s subject to

arrest.”

Yaghtin then walked to the sidewalk outside the library

to interview counterprotesters. While Yaghtin was walking

through the counterprotest zone, a counterprotester asked

him, “Aren’t you the one who advocated for execution of

gay people?” Yaghtin responded, “No that is what the Bible

says . . .” and began to converse with the counterprotester

until Officer Doe interrupted the exchange, saying:

Ok, you are not exercising your press rights.

If you want to report the story you can . . . it

is not your job to answer his questions . . .

you are engaging [the counterprotestor] on

political topics . . . you need to act like the

press and not try to take a political view . . .

you can’t preach the Bible to people . . . I

heard you say something about the Bible.

Yaghtin told Officer Doe that he was “asked a question” and

“was there to comply.” Yaghtin stated that he was “not

engaging . . . anyone today,” and only intended to “walk

through.” Yaghtin then asked Officer Doe if he needed “to

go to the other side of the street,” and Officer Doe responded

that he “did not say that.” Yaghtin indicated, “I’d like to go

through [the counterprotest zone] please,” and Officer Doe

directed counterprotesters to “get out of the way” and let

Yaghtin continue to move through the zone. After Yaghtin

walked through the counterprotest zone, he told Officer Doe

that he appreciated the protection.

A few days after the event, Yaghtin’s lawyer wrote to

Spokane Police Chief Meidl asking whether Officer

Vaughn’s telling Yaghtin that he would be subject to arrest

8 SAVED MAGAZINE V. SPOKANE POLICE DEP’T

if he engaged people or caused problems, represented “the

practices, policies, and official position” of the Spokane

Police Department. An Assistant City Attorney responded,

asking for any information that might show the police

interfering with Yaghtin’s press rights. Yaghtin’s counsel

sent the City Attorney two videos depicting the interaction

between the police officers and Yaghtin during the Drag

Queen Story Hour event. After further email exchanges, the

City Attorney told Yaghtin’s counsel that the city would

“review and evaluate what you have submitted” and

welcomed suggestions in the meantime to improve city

employee trainings.

II.

In January 2020, Plaintiffs filed a complaint against the

City of Spokane, the Spokane Police Department, Police

Chief Meidl, Officer Vaughn, and the Spokane Public

Library seeking declaratory and injunctive relief as well as

damages for violations of their First Amendment rights, and

a parallel claim under the Washington State Constitution.

The district court dismissed all claims against the Spokane

Library with prejudice, but dismissed the rest of the

complaint without prejudice, noting the lack of any grounds

for municipal liability and an inadequately pleaded First

Amendment claim.

In August 2020, Plaintiffs filed an amended complaint

against the Spokane Police Department, Police Chief Meidl,

and Officer Doe for declaratory relief based on the same

First Amendment and parallel Washington State

constitutional claims. Plaintiffs contended that Spokane

police officers violated their right to freedom of the press

when Officer Doe monitored Yaghtin’s communications and

intervened in a conversation between Yaghtin and a

counterprotester. Plaintiffs also alleged that the City of

SAVED MAGAZINE V. SPOKANE POLICE DEP’T 9

Spokane adopted the officers’ actions as policy “through

silent acquiescence.”

In their amended complaint, Plaintiffs referred to police

body camera footage depicting the Drag Queen Story Hour

event, which Defendants included as exhibits in their motion

to dismiss. The district court considered these videos under

the incorporation-by-reference doctrine when dismissing the

amended complaint with prejudice. The district court found

that even “after receiving notice from the Court about the

deficiencies in the original Complaint,” Plaintiffs had not

alleged facts to show they were entitled to relief on “any of

the modified claims or theories” raised. Thus after

“exhaustive examination by the parties and the Court of the

Plaintiff Yaghtin’s brief and limited interaction with the

relevant law enforcement and City officials,” the district

court concluded that further amendments would be futile.

On appeal, Plaintiffs challenge the district court’s First

Amendment ruling and contend that the court erred in

granting qualified immunity to Officer Doe and in

dismissing their claims for lack of municipal liability.

Although Defendants raise the issue of whether the district

court abused its discretion in dismissing the complaint

without leave to amend, Plaintiffs do not challenge the

dismissal with prejudice in their opening or reply brief. We

do not exercise our discretion to address this issue, and

therefore it is waived on appeal. See In re Riverside Linden

Inv. Co., 945 F.2d 320, 324–25 (9th Cir. 1991). Plaintiffs

also do not appeal the district court’s ruling concerning their

claim based on the Washington State Constitution.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291 and

review de novo the district court’s dismissal for failure to

10 SAVED MAGAZINE V. SPOKANE POLICE DEP’T

state a claim. Okwu v. McKim, 682 F.3d 841, 844 (9th Cir.

2012) (citing AE ex rel. Hernandez v. County of Tulare,

666 F.3d 631, 636, 638 (9th Cir. 2012)). We review de novo

all constitutional rulings as well as grants or denials of

qualified immunity. See Fournier v. Sebelius, 718 F.3d

1110, 1117 (9th Cir. 2013) (constitutional rulings); Prison

Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005)

(qualified immunity).

ANALYSIS

I.

Plaintiffs first argue that the district court erred in

concluding that Officer Doe was entitled to qualified

immunity because the law underpinning the alleged First

Amendment violation was clearly established. Qualified

immunity “shields government officials performing

discretionary functions 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.’” Scott v. Henrich, 39 F.3d 912,

914 (9th Cir. 1994) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). When an officer claims qualified

immunity, we ask “(1) whether there has been a violation of

a constitutional right; and (2) whether that right was clearly

established at the time of the officer’s alleged misconduct.”

Jessop v. City of Fresno, 936 F.3d 937, 940 (9th Cir. 2019)

(quoting Lal v. California, 746 F.3d 1112, 1116 (9th Cir.

2014)). Courts have discretion to decide which of the two

prongs “should be addressed first in light of the

circumstances in the particular case at hand.” Pearson v.

Callahan, 555 U.S. 223, 236 (2009). “Addressing the

second prong before the first is especially appropriate where

‘a court will rather quickly and easily decide that there was

SAVED MAGAZINE V. SPOKANE POLICE DEP’T 11

no violation of clearly established law.’” Jessop, 936 F.3d

at 940 (quoting Pearson, 555 U.S. at 239).

We find the “clearly established” prong dispositive here,

and so we do not address whether, under the facts as alleged,

Officer Doe violated Plaintiffs’ constitutional rights. This

case is appropriate for resolution on the second prong of

Pearson because it is difficult to identify the precise

constitutional violation Plaintiffs allege in their complaint.

Plaintiffs’ briefing focuses heavily on their First

Amendment right to freedom of the press. In particular, they

allege that Officer Doe violated that right when he prevented

Yaghtin, acting as a journalist, from “engaging in dialogue

with a protester” under threat of arrest. There is no question

that news gathering is protected by the First Amendment.

Branzburg v. Hayes, 408 U.S. 665, 681 (1972). Generally,

however, a journalist’s First Amendment rights are no more

extensive than those of ordinary members of the public. See

id. at 683–84; Cohen v. Cowles Media Co., 501 U.S. 663,

669–70 (1991). Therefore, Yaghtin’s First Amendment

rights were coextensive with those of any other member of

the public within the counterprotest zone, and so our inquiry

more properly concerns the scope of First Amendment

speech rights within that zone.

Plaintiffs argue that their clearly established rights were

violated because any officer would know that censoring

what someone can say in a public space raises serious First

Amendment issues that we must review applying strict

scrutiny. Plaintiffs’ arguments rely on abstract formulations

of First Amendment law that define their rights “at a high

level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (quoting City & County of San Francisco v. Sheehan,

575 U.S. 600, 613 (2015)). As the Supreme Court explained,

however, “clearly established law must be ‘particularized’ to

12 SAVED MAGAZINE V. SPOKANE POLICE DEP’T

the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552

(2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). If this is not done, “[p]laintiffs would be able to

convert the rule of qualified immunity that our cases plainly

establish into a rule of virtually unqualified liability simply

by alleging violation of extremely abstract rights.”

Anderson, 483 U.S. at 639.

It is of course true that government officials may not

exclude persons from public places who are engaged in

“peaceful expressive activity solely because the government

actor fears, dislikes, or disagrees with the views those

persons express.” Wood v. Moss, 572 U.S. 744, 756–57

(2014). “It is equally plain that the fundamental right to

speak secured by the First Amendment does not leave people

at liberty to publicize their views ‘whenever and however

and wherever they please.’” Id. at 757 (quoting United

States v. Grace, 461 U.S. 171, 177–78 (1983)). The question

for our purposes, however, is much narrower: Was the right

asserted by Yaghtin so “clearly established” that “a

reasonable officer would have known that his conduct

violated” that right? Romero v. Kitsap County, 931 F.2d

624, 628 (9th Cir. 1991).

Applying a typical First Amendment framework to

Plaintiffs’ claim leaves us with the proverbial task of trying

to fit a square peg in a round hole. In most cases where

restrictions on speech are challenged pursuant to the First

Amendment, we ask whether a legislative act, such as a city

ordinance or permit scheme, unconstitutionally infringes on

speech. See, e.g., Menotti v. City of Seattle, 409 F.3d 1113,

1117, 1128 (9th Cir. 2005) (analyzing an emergency city

order prohibiting access to portions of downtown); Forsyth

County v. Nationalist Movement, 505 U.S. 123, 124–27, 130

(1992) (analyzing a county’s assembly and parade fee

SAVED MAGAZINE V. SPOKANE POLICE DEP’T 13

ordinance); Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288, 289, 293 (1984) (analyzing a regulation

prohibiting camping in certain parks). But Plaintiffs do not

challenge a city ordinance or permit scheme, and they

expressly do not challenge the Spokane Police Department’s

use of separate protest zones. Instead, Plaintiffs’ challenge

is directed at Officer Doe’s enforcement of these zones. We

are not aware of any precedent that would alert Officer Doe

that his enforcement would violate clearly established First

Amendment law.

Our decision in Grossman v. City of Portland is

instructive on this point. 33 F.3d 1200 (9th Cir. 1994). In

Grossman, we granted qualified immunity to an officer

because his “allegedly unconstitutional action” was simply

to enforce “an ordinance which was duly enacted by the city

council.” Id. at 1209. Although we concluded that the

ordinance violated the First Amendment, the officer’s

enforcement of that ordinance was not clearly

unconstitutional. Id. at 1207–08. This is because law

enforcement officers may generally reasonably assume that

“policies or orders promulgated by those with superior

authority” are constitutional unless those policies or orders

are “patently violative of fundamental constitutional

principles.” Id. at 1209. In Grossman, we granted qualified

immunity to the officer even though we concluded the

ordinance was unconstitutional because the ordinance “was

not so obviously unconstitutional as to require a reasonable

officer to refuse to enforce it.” Id. at 1210. Here, Plaintiffs

do not even allege that the underlying protest zone scheme

was unconstitutional, much less “patently” unconstitutional.

The D.C. Circuit’s qualified immunity decision in Kroll

v. United States Capitol Police, 847 F.2d 899 (D.C. Cir.

1988), is also persuasive. In Kroll, the plaintiff sued a group

14 SAVED MAGAZINE V. SPOKANE POLICE DEP’T

of police officers for allegedly violating his First

Amendment rights when they arrested him for protesting a

ceremony to welcome Olympic torchbearers without a

permit. Id. at 900–01. Even though the officers considered

the content of the plaintiff’s message to determine that it

“conflicted with the spirit” of the event, the D.C. Circuit held

that the officers were entitled to qualified immunity. Id.

at 901. The court noted that based on the underlying facts of

the case, the officers could have “reasonably believe[d] that

they were enforcing a valid permit system,” and an officer

could reasonably conclude that to enforce “a permit system

inevitably requires taking cognizance of content.” Id.

Making judgments about “the message being conveyed by a

particular demonstrator,” is inherent to implementing a

permit system because otherwise officers “would have been

authorized to issue permits, but do nothing when

counterdemonstrators chose to intrude into the area of the

‘permitted’ activity and carry on their efforts to

communicate a different (or indeed possibly conflicting)

message.” Id.

Our decision in Grossman and the D.C. Circuit’s

reasoning in Kroll apply here. Plaintiffs do not challenge the

constitutionality of dividing protestors and counterprotestors

into separate zones. Consequently, it would make little

sense to conclude that Officer Doe violated clearly

established First Amendment law by enforcing the

separation of persons expressing particular views within

those zones. 3 A reasonable person in Officer Doe’s position

3

To emphasize, we need not, and do not, address the antecedent

question of whether the Spokane Police Department’s separate protest

zone scheme was constitutional because Plaintiffs have expressly

declined to challenge this issue. Accordingly, we have no policy or

legislative scheme to review.

SAVED MAGAZINE V. SPOKANE POLICE DEP’T 15

could have concluded that the Constitution permitted his

relatively modest efforts to prevent Yaghtin from provoking

counterprotestors in their designated zone, even if his actions

involved restricting Yaghtin’s speech. As with the officers

in Kroll—who, it should be noted, took the more heavy-

handed approach of arresting the plaintiff, 847 F.2d at 901—

Officer Doe determined that Yaghtin’s speech was contrary

to the purpose of the counterprotestor zone and prevented

him from engaging further on those certain topics.

Considering the lack of any precedent to the contrary, it

was not unreasonable for Officer Doe to believe that it was

lawful for him to examine the substance of Yaghtin’s speech

in order to enforce the separate protest zone policy. Cf. Hill

v. Colorado, 530 U.S. 703, 721 (2000) (“We have never

held, or suggested, that it is improper to look at the content

of an oral or written statement in order to determine whether

a rule of law applies to a course of conduct.”). The fact that

there was an underlying, uncontested governmental scheme

distinguishes this case from others where officers acted

entirely on their own initiative and arbitrarily restricted

speech. See, e.g., Snell v. City of York, 564 F.3d 659, 669

(3d Cir. 2009) (holding that a speech restriction in the form

of an ad hoc oral directive by a police officer, without any

guiding formal policy, presents a risk of arbitrary

enforcement warranting heightened scrutiny).

Consequently, Officer Doe is entitled to qualified immunity

on the second prong of the Pearson analysis.

II.

Plaintiffs also contend the district court erred in

dismissing their First Amendment claim against the Spokane

Police Department. Plaintiffs argue that four facts in their

complaint, taken together, amount to a policy, custom, or

practice under Monell v. New York City Department of

16 SAVED MAGAZINE V. SPOKANE POLICE DEP’T

Social Services, 436 U.S. 658 (1978): (1) Officer Vaughn’s

threat to arrest Yaghtin if he caused problems or acted

outside his role as a reporter, (2) Officer Doe’s actions in

telling Yaghtin what he could not say within the

counterprotest zone, (3) the radio log statements that “fake

press people” were at the event, and (4) the Assistant City

Attorney’s silence to Plaintiffs asking whether the officers’

conduct represented official police department policy.

The district court dismissed Plaintiffs’ claim, holding

that the Spokane Police Department was not a separate legal

entity subject to suit under 42 U.S.C. § 1983. On appeal

Plaintiffs do not challenge or present any argument about

this particular holding, and so we do not address it. Rather,

Plaintiffs briefs appear to focus on the district court’s

alternative holding that even if Plaintiffs had sued the City

of Spokane, their claim would still fail for lack of Monell

liability.

The City of Spokane cannot be held liable because even

assuming Spokane police officers violated Yaghtin’s First

Amendment rights, nothing in the complaint plausibly

alleges a policy, custom, or practice leading to that violation.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiffs’

allegations amount to no more than an “isolated or sporadic

incident[]” that cannot form the basis of Monell liability for

an improper custom. Trevino v. Gates, 99 F.3d 911, 918 (9th

Cir. 1996). Plaintiffs cite no law in support of their theory

that a city’s silence about a single incident can support the

finding of a city-wide custom. “When one must resort to

inference, conjecture and speculation to explain events, the

challenged practice is not of sufficient duration, frequency

and consistency to constitute an actionable policy or

custom.” Id. at 920.

SAVED MAGAZINE V. SPOKANE POLICE DEP’T 17

CONCLUSION

Officer Doe is entitled to qualified immunity because

Plaintiffs have not identified any clearly established right

that Officer Doe violated. Plaintiffs have also not plausibly

alleged any City of Spokane policy, practice, or custom

sufficient to establish Monell liability. The judgment of the

district court is therefore affirmed.

AFFIRMED.