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Fenn v. City of Truth or Consequences.

No. 19-2201. D.N.M. Judge Tymkovich. 42 USC § 1983—First Amendment Retaliation—Malicious Prosecution—Supervisory Liability—Qualified Immunity.

December 28, 2020


The City of Truth or Consequences (City) converted a senior citizen community center into a visitor center operated by Spaceport America (Center). The Center was then leased to several other tenants. Plaintiff was a local resident who was unhappy with the Center’s conversion and publicly protested in the building on numerous occasions. Several tenants complained to law enforcement about plaintiff’s “offensive” behavior and unauthorized use of the building, and plaintiff was issued three no trespass notices. Ultimately, he was arrested and charged with trespass, but the charges were later dismissed without prejudice.

Plaintiff brought several claims under 42 USC § 1983 against the Center director, the arresting officer and police chief, and the City, alleging First Amendment retaliation, malicious prosecution, and supervisory liability. Plaintiff also filed a state law claim for malicious abuse of process. The district court dismissed plaintiff’s constitutional law claims on qualified immunity grounds, and it dismissed the state law claim.

Plaintiff argued on appeal that he sufficiently alleged the violation of his First Amendment right to peaceful assembly and protest. However, the Center was leased to various non-governmental entities and was a nonpublic forum, so it was not the type of public forum in which the government must allow picketing and other forms of protest. Further, where the adverse action takes the form of an arrest and subsequent prosecution, the plaintiff must show an absence of probable cause. Here, the defendants had ample trustworthy information that would have led a reasonable officer to believe plaintiff had committed criminal trespass under New Mexico law. Therefore, plaintiff failed to make the required showing. Accordingly, plaintiff did not establish a claim for First Amendment retaliation.

Plaintiff also argued that if the panel overturns the district court’s qualified immunity determination as to the individual defendants, the supervisory claims must be revived. A municipality may not be held liable when there was no underlying constitutional violation by its officers. Because plaintiff did not establish a violation of a clearly established constitutional right, the supervisory liability claims were properly dismissed.

Plaintiff also challenged the summary judgment on the state law claim. To state a claim for malicious abuse of process, plaintiff had to show that the criminal complaint was unsupported by probable cause, which he failed to do. The district court correctly granted summary judgment on this claim.

The dismissal of plaintiff’s First Amendment retaliation claims and the grant of summary judgment in favor of defendants on the remaining claims were affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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