Asprey v. N. Wyo. Cmty. Coll. Dist.

THOMAS ASPREY; LESLIE GLUSTROM, Plaintiffs - Appellants, v. NORTHERN WYOMING COMMUNITY COLLEGE DISTRICT;LIEUTENANT CHAD TREBBY, in his official and individual capacities, Defendants - Appellees,andPEABODY ENERGY CORPORATION, Defendant.

No. 19-8056

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

August 11, 2020

(D.C. No. 1:15-CV-00063-SWS)

(D. Wyo.)

ORDER AND JUDGMENT^*

Before BRISCOE, MATHESON, and CARSON, Circuit Judges.

This case stems from Defendant Chad Trebby's decision to arrest Plaintiffs Thomas Asprey and Leslie Glustrom. Just before their arrest, Plaintiffs had been protesting at Peabody Energy Corporation's annual meeting of shareholders. When they defied Trebby's order to confine their protest activity to a designated area and instead unfurled a bedsheet painted with the words "PEABODY ABANDONS MINERS" across a travel lane in a parking lot, he arrested them. Plaintiffs then sued under 42 U.S.C. § 1983, alleging that Trebby's arrest violated their First and Fourth Amendment rights. The district court granted summary judgment to Trebby and his employer, the Northern Wyoming Community College District (NWCCD). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

NWCCD operates its own police department and employed Trebby as a law enforcement officer. Peabody operates coal mines. It rented space at NWCCD's Gillette College to hold its annual meeting. Before the meeting, Peabody alerted Trebby to the prospect that anti-Peabody/anti-coal protesters would likely show up.

Trebby met with Gillette College's CEO and NWCCD's police chief to develop a plan for ensuring that any protests would not interfere with campus operations or student learning. They decided to erect a protest zone in an area designated for that purpose by the student handbook. "Because of very strong local opposition that surfaced the last time there was an effort to protest coal production in the Gillette area," they decided to establish a second protest zone "equal distance from the main doors [of the building where Peabody would hold its meeting] as thefirst area." Aplt. App. Vol. 2 at 272. They did this to enable "the opposing sides to exercise their views" while "minimizing confrontation between the two groups." Id. They assigned the anti-Peabody/anti-coal group to the protest area closest to the west entrance of the main parking lot. Trebby stated in his affidavit that "[m]ost people coming to campus drive down 4J Road" and enter via the west entrance. Id. at 318. According to him, that entrance "receives notably more traffic than other parts of campus," id., and the anti-Peabody/anti-coal zone was "more visible . . . to people driving down 4J Road to the college" than the pro-Peabody/pro-coal zone, id. at 319.

Just before the meeting, Plaintiff Glustrom and other anti-Peabody protesters met with NWCCD police, who told them about the protest zones. Around this time, Plaintiff Asprey "talked to some miners . . . [and] told them why [he] was there." Id. Vol. 3 at 450.

Plaintiffs then attended the meeting as proxies for Peabody shareholders. They sat in an overflow room with some miners and other proxy holders. Plaintiff Asprey submitted a written question that a Peabody executive read aloud in the primary meeting space.

After the meeting, Plaintiffs displayed their painted bedsheet banner outside of the designated zone and near the front doors of the college. Trebby informed them "that they were welcome to stay on campus . . . but that they needed to contain their protest activities to the designated area." Id. Vol. 2 at 273. Plaintiffs complied and started walking toward the protest zone. But they "began to separate and again display the banner as they were walking down a primary driving lane of the parkinglot." Id. at 274. Trebby again "informed them that they needed to refrain from engaging in such behavior until they reached the designated area[] and . . . asked them to hold the banner down until they reached the designated area." Id.

Plaintiffs only protested in the anti-Peabody zone for "[a] minute or two." Id. Vol. 3 at 441. After this, they folded up their banner and began walking back across the parking lot to their car to go home. They "knew then Officer Trebby didn't want [them] to show [the banner]." Id. at 453. But Plaintiffs encountered a group of like-minded miners and elected to unfurl the banner across one of the travel lanes of the parking lot to take a picture with them.

Trebby then arrested Plaintiffs and cited them for trespassing in violation of Wyo. Stat. Ann. § 6-3-303. A Wyoming judge dismissed the charges, finding that Trebby lacked probable cause to arrest Plaintiffs for trespass.

Plaintiffs later brought this suit under 42 U.S.C. § 1983. As relevant here, they alleged Trebby violated their Fourth Amendment rights by arresting them without probable cause and their First Amendment rights by arresting them in retaliation for exercising their rights to free speech. And they sought damages from NWCCD as Trebby's employer under Monell v. Department of Social Services, 436 U.S. 658 (1978).

The district court granted summary judgment to Trebby and NWCCD. It applied the doctrine of qualified immunity and rejected Plaintiffs' Fourth Amendment claims because, among other things, Trebby had probable cause to arrest them for interfering with the performance of his duties in violation of Wyo. Stat. Ann. § 6-5-204(a). It also applied the doctrine of qualified immunity to reject Plaintiffs' First Amendment claims,reasoning that "at the time of Plaintiffs' arrest, it was not clearly established that an arrest supported by arguable probable cause could violate the First Amendment." Aplt. App. Vol. 3 at 649. And it concluded that "[t]he lack of a constitutional violation by . . . Trebby means . . . NWCCD cannot be liable to Plaintiffs under § 1983." Id. at 651 (boldface and underline omitted).

II. Discussion

A. Burden of Proof and Standard of Review

"[P]ublic officials enjoy qualified immunity in civil actions that are brought against them in their individual capacities and that arise out of the performance of their duties." Pahls v. Thomas, 718 F.3d 1210, 1227 (10th Cir. 2013). Where, as here, "a defendant asserts a qualified immunity defense, the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct." Donahue v. Wihongi, 948 F.3d 1177, 1186 (10th Cir. 2020) (internal quotation marks omitted). "If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgment—showing that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law." Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011) (internal quotation marks omitted).

"We review de novo the district court's grant of qualified immunity to [a] [d]efendant in the context of summary judgment." Culver v. Armstrong,832 F.3d 1213, 1217 (10th Cir. 2016). "In determining whether the plaintiff has met its burden of establishing a constitutional violation that was clearly established, we will construe the facts in the light most favorable to the plaintiff as the nonmoving party." Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009).

B. Fourth Amendment Claims

Plaintiffs contend Trebby violated their Fourth Amendment rights by arresting them without probable cause. "A warrantless arrest violates the Fourth Amendment unless probable cause exists to believe a crime has been or is being committed." Corona v. Aguilar, 959 F.3d 1278, 1282 (10th Cir. 2020). But "when an officer has probable cause to believe a person committed even a minor crime in his presence . . . [t]he arrest is constitutionally reasonable." Virginia v. Moore, 553 U.S. 164, 171 (2008).

"Probable cause exists if facts and circumstances within the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense." Corona, 959 F.3d at 1282 (internal quotation marks omitted). "[P]robable cause 'is not a high bar.'" Hinkle v. Beckham Cty. Bd. of Cty. Comm'rs, 962 F.3d 1204, 1220 (10th Cir. 2020) (quoting Kaley v. United States, 571 U.S. 320, 338 (2014)). "Officers need 'only the kind of fair probability on which reasonable and prudent people, not legal technicians, act.'" Id. (quoting Kaley, 571 U.S. at 338). "An officer's subjective state of mind is irrelevant to the probable-cause calculus because the crux of the inquiry is whether 'the circumstances, viewed objectively, justify the arrest.'" Id. (alterations omitted) (quoting Devenpeck v. Alford, 543 U.S. 146, 153 (2004)).

The district court found Trebby had probable cause to arrest Plaintiffs for violating Wyo. Stat. Ann. § 6-5-204(a).¹ A person violates the statute if he or she "knowingly obstructs, impedes or interferes with or resists arrest by a peace officer while engaged in the lawful performance of his official duties." Wyo. Stat. Ann. § 6-5-204(a). Interference includes anything "which hinders or prevents or tends to prevent the performance of [an officer's] legal duties." Garza v. State, 458 P.3d 1239, 1242 (Wyo. 2020) (internal quotation marks omitted). "The statute was made purposefully broad to cover actions which might not be otherwise unlawful, but which obstructed or hindered law enforcement officers in carrying out their duties." Id. (alterations and internal quotation marks omitted).

1. Plaintiffs Interfered with Trebby

The district court concluded that "[t]he law and common sense dictate that knowingly failing or refusing to follow an officer's lawful order or directive readily amounts to impeding or interfering with the officer's performance of his or her duties" inviolation of ...