Fonseca v. Clauson
What’s at Stake
This case presents us with the opportunity to urge the Ninth Circuit to narrowly interpret its jurisdiction to hear qualified immunity cases on appeal. Judge-made immunity doctrines like qualified and sovereign immunity make litigating claims against government actors like police officers and corrections officers either difficult or impossible. Meanwhile, interlocutory appeals by government actors like the one in this case needlessly slow down litigation. For people who are incarcerated and who often represent themselves and have limited access to law libraries and legal materials, every additional issue that requires briefing is an additional barrier that can keep them from ever reaching the merits of their claims.
Summary
This is an appeal of a denial of qualified immunity arising from a journalist’s arrest while reporting on the police clearance of an encampment in the city of Medford, Oregon in 2020. The Medford City Council, the Medford Chief of Police, the City Manager, and members of the police department’s “Livability Team” decided that people who had been camping in Hawthorne Park and their campsites needed to be removed. Accordingly, the city issued an order to close the park. The police department planned to exclude reporters and observers from the clearance operation, instead setting up a media staging area and telling journalists that they could not enter the park.
Ms. Fonseca arrived at the park early on the morning of the clearance, carrying her reporting equipment and wearing her press credentials, to report on police actions in the park. After a police officer asked her to leave the park, she explained she was a reporter and refused to leave the park. She was then arrested and taken to the local county jail where she was subjected to a strip search and body cavity search. The charges against her were eventually dropped. Ms. Fonseca then filed a section 1983 claim alleging federal civil rights claims and state tort claims, including First and Fourth Amendment violations.
Core Legal Problem
The district court found Ms. Fonseca had a First Amendment right to be in the closed park on September 22, 2020, to observe and record police activity. As such, the district court concluded the decision to exclude Ms. Fonseca, a reporter, from Hawthorne Park on September 22, 2020, was a content-neutral prior restraint on speech subject to scrutiny under the reasonable time, place, manner test. Applying that standard, the district court found that an issue of fact existed as to whether the prior restraint was narrowly tailored to achieve a significant government interest and at the same time left open ample alternative channels for communication, i.e., whether the prior restraint violated Ms. Fonseca’s First Amendment rights. The district court further found that Ms. Fonseca’s First Amendment right to report on police activity from a public forum was clearly established. With respect to Ms. Fonseca’s Fourth Amendment claim, the district court found that if the decision to exclude Ms. Fonseca from Hawthorne Park violated her First Amendment right, then the arrest of Ms. Fonseca could not have been supported by probable cause. And the district court concluded Ms. Fonseca’s Fourth Amendment right to only be arrested on probable cause was clearly established. The district court therefore held that the issue of fact on the First Amendment claim precluded qualified immunity on the Fourth Amendment claim.
On appeal, Appellants argue that the district court applies the incorrect legal standard because the park was a closed location, not a public forum. If that is true, the district court’s decision to analyze the closure order itself to determine whether it was a legitimate prior restraint on speech was legal error. Appellants also argue that, to deny qualified immunity to each of the individual defendants, the district court had to find that it was clearly established in September 2020 that each of their individual actions in issuing, approving, implementing, or enforcing the closure order would violate Ms. Fonseca’s First or Fourth Amendment rights, and that such a conclusion could not be made based on the facts as found by the district court.
Our brief supports Appellee’s defense of the district court’s denial of qualified immunity. First, the brief argues that both the collateral order doctrine and qualified immunity are mistakes that, together, work to prevent access to justice for people whose civil rights have been violated by government officials. The brief explains that allowing interlocutory appeals of qualified immunity denials has flooded the courts with such appeals and urge the court to narrowly construe its jurisdiction on appeal to “neat abstract issues of law.” Because that is not what is being presented here, the brief urges the court to dismiss the appeal for lack of jurisdiction.