Weise v. Casper
2010 WL 293798, 2010 U.S. App. LEXIS 1859, 593 F.3d 1163 (2010)
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Rule of Law:
Government officials are entitled to qualified immunity from liability for damages when their conduct does not violate a constitutional right that was 'clearly established' at the time of the alleged violation. A right is not clearly established if there is no specific precedent from the Supreme Court or the relevant circuit court that would put a reasonable official on notice that their particular actions were unlawful.
Facts:
- The White House Advance Office had a policy of excluding individuals who disagreed with President George W. Bush from his official public appearances.
- Leslie Weise and Alex Young obtained publicly available tickets for an official speech by President Bush at the Wings Over the Rockies Museum on March 21, 2005.
- Weise and Young arrived at the event in Weise's vehicle, which displayed a 'No More Blood For Oil' bumper sticker.
- After Weise and Young passed through security and were seated, Jay Bob Klinkerman, a volunteer, identified Weise based on the bumper sticker.
- Michael Casper, another volunteer acting on instructions from White House employees, told Weise she was identified because of the bumper sticker.
- Casper, on orders from White House staff, then approached Weise and Young at their seats and escorted them from the event.
- Weise and Young had not caused any disruption at the event, nor did they indicate any intention to do so.
- The Secret Service later confirmed to Weise and Young that they were asked to leave because of the bumper sticker.
Procedural Posture:
- Leslie Weise and Alex Young filed a Bivens complaint in the U.S. District Court for the District of Colorado against Michael Casper and Jay Bob Klinkerman.
- The district court denied the defendants' initial motion to dismiss based on qualified immunity.
- On interlocutory appeal, the U.S. Court of Appeals for the Tenth Circuit dismissed the appeal for lack of jurisdiction because a factual question remained.
- After further discovery, the defendants again moved to dismiss on qualified immunity grounds.
- The district court granted the defendants' motions to dismiss, finding they were entitled to qualified immunity.
- The district court certified its order as final under Fed.R.Civ.P. 54(b).
- Plaintiffs Leslie Weise and Alex Young appealed the district court's dismissal to the U.S. Court of Appeals for the Tenth Circuit.
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Issue:
Does ejecting ticket-holding, non-disruptive attendees from an official presidential speech, based solely on the political viewpoint expressed on a bumper sticker on their vehicle, violate a clearly established First Amendment right of which a reasonable official would have known?
Opinions:
Majority - Judge Paul Kelly, Jr.
No. The attendees' First Amendment right was not clearly established at the time of the violation. Qualified immunity protects government officials from liability unless their conduct violates a clearly established constitutional right. To be clearly established, the unlawfulness of the conduct must be apparent in light of pre-existing law; broad, general propositions of law are insufficient. The court chose to bypass the question of whether a constitutional violation occurred and focused instead on whether the right was clearly established. It found no Supreme Court or Tenth Circuit precedent on point for the specific situation of ejecting a silent attendee from an official speech based on their protected expression outside the event. The cases cited by the plaintiffs were distinguished as involving actual speakers in public forums, not silent attendees. Without specific authority, a reasonable official would not have been on notice that this conduct was unconstitutional.
Dissenting - Judge Holloway
Yes. The attendees' First Amendment right was clearly established and violated. The government cannot deny a benefit, such as attendance at a public event, on a basis that infringes on constitutionally protected speech. The prohibition on viewpoint discrimination is a bedrock principle of First Amendment law, and it should have been obvious to any reasonable official that ejecting citizens from a public speech solely for expressing a political opinion elsewhere was unlawful. The majority's reliance on cases like Sistrunk is misplaced because this event was public, not private, and the plaintiffs were non-disruptive attendees, not individuals attempting to convey a message at the event. The general constitutional rule against viewpoint discrimination applies with obvious clarity to these facts, meaning the officials should not be entitled to qualified immunity.
Analysis:
This decision significantly reinforces the high bar for overcoming qualified immunity, emphasizing that plaintiffs must identify factually similar precedent to demonstrate that a right was 'clearly established.' By choosing to resolve the case on the second prong of the qualified immunity test without deciding whether a constitutional violation occurred, the court leaves the underlying First Amendment question unresolved. This approach, permitted by Pearson v. Callahan, can stifle the development of constitutional law, as it allows potentially unconstitutional conduct to go unaddressed and leaves the law unsettled for future cases with similar facts.
