Bledsoe v. Ferry County, Washington

499 F.Supp.3d 856

Jaina BLEDSOE, a single woman, Plaintiff,

v.FERRY COUNTY, WASHINGTON; Michael Blankenship, in his personal, representative, and professional capacity; Nathan Davis, in his personal, representative, and professional capacity; and Amanda Rowton, in her personal, representative, and professional capacity, Defendants.

NO: 2:19-CV-227-RMP

United States District Court, E.D. Washington.

Signed October 30, 2020

Andrew Sean Biviano, Breean Lawrence Beggs, Mary Elizabeth Dillon, Paukert & Troppmann PLLC, Spokane, WA, for Plaintiff.

Jerry John Moberg, James Edyrn Baker, Mary Moberg Rathbone, Moberg Rathbone Kearns, Ephrata, WA, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN PART; DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

ROSANNA MALOUF PETERSON, United States District Judge

BEFORE THE COURT are cross Motions for Summary Judgment filed by Plaintiff Jaina Bledsoe, ECF No. 28, and Defendants Ferry County, Michael Blankenship, Nathan Davis, and Amanda Rowton, ECF No. 32. The Court heard oral argument from the parties on October 9, 2020. Plaintiff Jaina Bledsoe was represented by Mr. Andrew S. Biviano and Ms. Mary Dillon. Defendants were represented by Mr. Jerry J. Moberg and Mr. James E. Baker.

Ms. Bledsoe is a citizen of Ferry County. Defendant Blankenship is a former Ferry County Commissioner. Defendant Davis serves as Chairperson for the Board of Ferry County Commissioners. Defendant Rowton is the Clerk for the Board of County Commissioners.

On February 26, 2018, prior to a public meeting, Ms. Bledsoe wrote two messages in chalk outside the entrance to the Ferry County Commissioners’ building. The chalk messages were removed before meeting attendees could see what Ms. Bledsoe had written. Clerk Rowton, at the direction of the Commissioners, called the local police to create a record of the incident. This led to the filing of a criminal charge against Ms. Bledsoe for malicious mischief in the third degree pursuant to RCW 9A.48.090(1)(a). The criminal case against Ms. Bledsoe eventually was dismissed for lack of probable cause.

Defendants argue that their actions were lawful pursuant to Washington's malicious mischief statute, RCW 9A.48.090(1)(b), which criminalizes writing, painting, or drawing any inscription, figure, mark of any type on any public or private building or other structure or any real or personal property owned by another person. Defendants further argue that Ms. Bledsoe did not have a First Amendment right to "deface" public property, pointing to case law in which courts have upheld the enforcement of similar "defacement" statutes as applied to sidewalk chalk.

On July 2, 2019, Ms. Bledsoe filed a Complaint in this Court against Defendants Ferry County, Commissioner Michael Blankenship, Commissioner Nathan Davis, Commissioner Johnna Exner, and Clerk Amanda Rowton. ECF No. 1. Ms. Bledsoe named each Individual Defendant in his or her individual and official capacities. Id. Ms. Bledsoe asserts two claims arising under § 1983 for Defendants’ alleged violations of the First Amendment for censoring her speech and for retaliatory prosecution. Ms. Bledsoe also asserts a malicious prosecution claim under Washington State law. Id. Defendants moved to dismiss the Complaint for failure to state a claim. See ECF No. 8. The Court partially granted the Motion to Dismiss, dismissing Ms. Bledsoe's claims against Commissioner Exner without prejudice, but denied the remainder of the Motion to Dismiss. See ECF No. 20. The parties have now filed cross motions for summary judgment. ECF Nos. 28, 32. The Court has reviewed the pleadings, heard oral argument from the parties, and is fully informed. For the reasons stated in this Order, the Court GRANTS Plaintiff's Motion for Summary Judgment in part, and DENIES Defendants’ Motion.

STATEMENT OF FACTS

Local Newspaper and Shepard's Crook & Note

At various times in 2017, Ferry County Commissioner Mike Blankenship publicly described community members advocating for a non-motorized recreational trail as "sheep" and "jackasses." ECF No. 38 at 2. Plaintiff Jaina Bledsoe regularly purchased advertising space in the local newspaper and wrote opinion pieces criticizing the Ferry County Commissioners, including Commissioner Blankenship for his use of the words "sheep" and "jackasses" when referring to his constituents. Id. Commissioner Blankenship publicly responded in the local newspaper, stating:

Let me be clear, I am impressed that the words "sheep" and "jackasses" can be economic drivers for the newspaper (advertisement cost). Furthermore, let me be clear that the person or persons who are waiting for an apology should not hold their breath, since I am certain it would be fatal!

The use of those words was not an accident. I said what I meant and meant what I said.

It should be understood that any statement, comment, or word that does not name an individual or object directly could only be offensive to those who feel it describes them. Hence the saying, "If the shoe fits, wear it!"

ECF No. 30-6 at 2.

On October 17, 2018, Ms. Bledsoe delivered to the Commissioners’ Building a shepherd's crook and note addressed to Commissioner Blankenship. ECF No. 38 at 2. The note stated:

The "sheep" that are all "jackasses" about that "piece of shit trail" ... would like you to ensure you have the proper tool for your particular leadership style. Enjoy! Sincerely, Jaina Bledsoe.

ECF No. 30-7 at 3. However, before the shepherd's crook and note could be received by Commissioner Blankenship, Commissioner Nathan Davis called the sheriff to have the crook removed "to keep it from escalating into something big."¹ ECF No. 30-4 at 10. As a result, Commissioner Blankenship did not receive the crook or the note. ECF Nos. 30-4 at 11; 38 at 4–5.

Ms. Bledsoe writes in chalk

On February 26, 2018, prior to a public meeting, Ms. Bledsoe wrote with sidewalk chalk outside the entrance of the Commissioners’ meeting room the following phrases: "You are not sheep" and "You are not jackasses." ECF No 38 at 5. Ms. Bledsoe wrote on the cement public walkways leading to the entrances of the public meeting room at the county-owned Commissioners’ building. Id. at 6. The Board of County Commissioners post public communication notices on the doors to the entrances of the building. Id. There is no dispute that Ms. Bledsoe's chalk was temporary, caused no permanent property damage, nor impaired access to the public walkways or the building. Id. ; ECF No. 30-2 at 12.

Amanda Rowton, the Clerk of the Commission, observed Ms. Bledsoe writing in chalk on the walkway. ECF No. 30-2 at 6; 43 at 7. Clerk Rowton relayed her observation of Ms. Bledsoe to Commissioners Exner, Blankenship, and Davis, who were in a public meeting session. ECF Nos. 30-3 at 18–19; 30-4 at 17–18; 43 at 7. The Commissioners went outside to see the chalk. ECF Nos. 30-3 at 18–19; 30-4 at 18; 38 at 6.

Clerk Rowton testified that "the consensus of the board was call the police." ECF Nos. 30-2 at 6; 38 at 7. Clerk Rowton also testified that she called the police because "[the Commissioners] wanted to create a record for the string of actions because they were concerned about it escalating." ECF Nos. 30-2 at 6; 38 at 7. Clerk Rowton told the responding officer that she saw Ms. Bledsoe writing on the sidewalk and wanted to report it because Ms. Bledsoe had acted out against the Commissioners before. ECF Nos. 30-2 at 8–10; 30-9 at 4; 38 at 8.² Ms. Rowton testified that she conveyed the reason for the call (because Plaintiff "had acted out against them before") to the responding officer at the direction of the Board of Commissioners. ECF Nos. 30-2 at 9; 38 at 8.

Commissioner Blankenship testified that "there was a sense of escalation" and that "[w]e went from writing in the newspaper to now marking up the sidewalk, and then what's next?" ECF Nos. 30-3 at 20; 38 at 8–9. Commissioner Blankenship also testified that he suspected "there was a consensus somewhere in the room that it needed to be reported," but there was not a consensus among the Commissioners with respect to what Clerk Rowton should say to the police. ECF No. 30-3 at 21.

The chalk messages were removed before the public meeting by Jennifer Knowles, the Board's Deputy Clerk. ECF Nos. 30-2 at 6; 30-4 at 23; 43 at 10. The Commissioners had the chalk messages removed because "it [was] unprofessional" and "it's considered part of the building." ECF No. 30-4 at 23. Commissioner Davis testified that the chalk was removed to "just try [ ] to keep the meeting at peace and not try to stir people up." Id. When asked if the Commissioners removed the chalk prior to the meeting so people attending would not see what Ms. Bledsoe had written, Commissioner Davis testified: "I suppose there might be a piece of that." Id.

When asked whether he would call the Sheriff for messages in chalk that are advocating for a political candidate on county property, Commissioner Blankenship testified that "if they are not a threat, [he] would not." ECF No. 30-3 at 17.³ When asked whether he would report various incidents of messages or symbols in chalk, such as birthday greetings or a swastika, Commissioner Davis testified "it just depends on the format of free speech ... I considered writing on [the entrance of] our building crossing the line." ECF No. 30-4 at 31. In response to whether he would call the police if "Black Lives Matter" was written in chalk in the same location, Commissioner Davis testified "[i]f they want to go out on the sidewalk and do it, that's fine. They want to do it in the middle of the road, so be it .... But at the end, I mean, it's encroaching on our office, and at the point, you know, we're having to have people go out there and clean it off and take care of our building. ECF No. 30-4 at 32.⁴

Commissioner Davis testified that he saw other chalk on a street in Ferry County. ECF No. 30-4 at 25–26. He testified that he did not call the police to report that chalk because "it wasn't part of [t...