Utah artist feels impact of high court decision

Monday, February 16, 2009

As predicted by some legal experts, last month’s Supreme Court ruling in a search-and-seizure case is already having an impact on First Amendment law.

The high court changed the equation for application of the qualified-immunity doctrine, which provides that government officials are not liable for constitutional violations unless they violate clearly established constitutional or statutory law. The idea behind qualified immunity is that it would be unfair to impose liability on public officials when they reasonably believed they were acting lawfully.

A three-judge panel of the 10th U.S. Circuit Court of Appeals ruled this month that city officials in Park City, Utah, were entitled to such immunity for not allowing an artist to sell his work on city streets because they did not violate clearly established law.

Last month, the Supreme Court ruled in Pearson v. Callahan that lower court judges could bypass the often-complex first question in qualified-immunity cases — whether there has been a constitutional violation. Previously, the Supreme Court in Saucier v. Katz had determined that in cases where a qualified-immunity defense arises, a reviewing court must follow a two-step process. First, the court must determine whether the facts as alleged by the plaintiff constitute a violation of a constitutional right. Second, the court must determine whether — at the time of the conduct in question — that right was clearly established.

In Pearson, the Court changed the law for qualified immunity by saying that lower court judges could dismiss a claim because the law was not clearly established. Even though Pearson itself involved the Fourth Amendment, its principles apply to virtually all constitutional tort litigation — including First Amendment claims.

The case of Shaun Christensen shows the influence of the Pearson decision. In January 2004, Park City officials told Christensen that, owing to a city ordinance, he could not sell his artwork in a public park without obtaining a license. Christensen ignored the warnings and tried to sell his prints. Officials arrested and jailed him for three days. The charges were later dismissed (the opinion was silent as to why).

Christensen then sued the city and officials, contending that the city ordinance infringed on First Amendment rights and that the officers engaged in unconstitutional action in enforcing such an ordinance against him.

A federal district court dismissed his constitutional claims in 2006. With respect to his claims against the individual officers, the federal judge determined that his complaint was too vague and did not specify how a First Amendment violation occurred. The judge court also ruled that the law in this area was not clearly established.

Christensen appealed the ruling to the 10th Circuit.

On Feb. 6, a three-judge panel of the 10th Circuit in Christensen v. Park City Municipal Corporation affirmed the dismissal of the artist’s claims against the individual officers.

Writing for the panel, Judge Michael W. McConnell disagreed with part of the rationale offered by the district court that Christensen’s complaint was too vague. Rather, McConnell said the complaint provided “sufficient factual material” to advocate a potential constitutional claim. However, McConnell seized upon the Supreme Court’s decision in Pearson to affirm the result in the district court.

“Fortunately, very recently, while this opinion was being prepared, the Supreme Court jettisoned its prior holding that courts in qualified immunity cases must determine whether the plaintiff’s constitutional rights were violated before turning to whether the asserted right was clearly established,” he wrote.

“This case is a prime example of when the discretion to avoid the first half of the Saucier two-step should be exercised,” McConnell said. “To attempt to answer Saucier’s first question [whether there has been a constitutional violation in the first place] would require us to opine on an open and significant issue of constitutional law on an inadequate record… . We therefore exercise our newfound discretion and move on.”

By “moving on,” McConnell meant proceeding to the second step — determining whether the law in this area was clearly established. McConnell said other decisions “stand for somewhat different interpretations of the First Amendment as applied to sales of artwork on public property.” Thus, he determined that the law was not clearly established and granted qualified immunity to the individual defendants.

However, McConnell reversed the lower court on the dismissal of Christensen’s claims against the city, noting that cities (unlike individuals) are not entitled to qualified immunity. He remanded the case back down to the district court to engage in more fact-finding and legal analysis to determine whether the city ordinance in question violated the First Amendment.

That part of the ruling aside, this decision is notable in that it shows the reach and impact of the Supreme Court’s decision in Pearson.