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