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Ninth Circuit:
Threat to Sue Complainer Can Be Civil Rights Violation
Judges Say, Over Dissent, That City Animal Control Officer Could Be Held Liable for First Amendment Breach
For Telling a Woman Complaining of Conduct of Another Officer That He Would Like to Sue Her
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reinstated a civil rights action against a Long Beach animal control officer who allegedly threatened to sue a caller who complained of the conduct of the defendant’s co-worker, with Circuit Judge Lawrence VanDyke asserting in a partial dissent that the majority had fabricated facts.
Circuit Judges Eric D. Miller and Richard A. Paez signed a memorandum opinion in which they reversed a summary judgment granted by District Court Judge Stanley Blumenfeld Jr. of the Central District of California in favor of the animal control officer, Alfredo Magaña. Long Beach resident Leah Kando sued Magaña for attempting to chill her First Amendment rights by threatening retaliation if she filed a complaint against the officer who cited her for having her dog unleashed.
After hanging up on Magaña, Kando filed a complaint form online.
Blumenfeld’s Ruling
Blumenfeld granted summary judgment in favor of Magaña (and others Kando sued) on Sept. 29, 2021. The judge said:
“Magana’s allegedly retaliatory conduct (arguing with Plaintiff) occurred before, not after, Plaintiff’s protected conduct (submitting the complaint form), making it impossible to show but-for causation.” He added that “an unpleasant phone call” would not be apt to “ ‘chill a person of ordinary firmness’ from engaging in protected speech.”
The judge concluded that Magaña and two other animal control officers Kando sued “did not violate a ‘clearly established’ constitutional right, and qualified immunity is appropriate.”
911 Call
One of the other defendants was Nadia Klute, a city dispatcher who answered a 911 call placed by Kando to complain of an animal control officer coming to her apartment and taping a citation on the front door. Kando remarked:
“I’m a gun owner, if she comes to my house without permission, it will be the last thing she does, I’m not kidding.”
Klute admonished Kando that making a threat to a city employee was impermissible, and Klute responded:
“Okay, then I take it back!”
Kando’s claim against Klute was based on her making a report to police of the threat and not immediately advising officers that the Klute had recanted it. (Kando was arrested for making a criminal threat but not prosecuted.)
Blumenfeld recited that Klute made out an incident report in which she told of the threat being withdrawn.
Yesterday’s memorandum opinion affirms summary judgment in favor of Klute, saying: “Because Kando has not demonstrated that Klute deliberately or recklessly omitted material evidence, she has not established a due process claim.” VanDyke agreed with that portion of the majority’s opinion.
Memorandum Opinion
Miller and Paez said that Kando “made a sufficient showing of each element” of an action for violation of the First Amendment right to “petition the Government for a redress of grievances” to be entitled to a trial. Quoting from a 2022 opinion, they said a plaintiff must show having been “engaged in constitutionally protected activity,” that an “adverse action” was taken that “would chill a person of ordinary firmness from continuing to engage in the protected activity,” and that “a substantial causal relationship between the constitutionally protected activity and the adverse action.”
They said that Kando “engaged in constitutionally protected activity,” reciting that in the phone conversation, she asked for a complaint form “and criticized the officer’s behavior as unprofessional, aggressive, and offensive to taxpayers.” The judges remarked that “[c]riticizing the government is activity that is ‘paradigmatically protected by the First Amendment.’ ”
They wrote that “Magaña’s alleged threat to sue her was an adverse action,” observing:
“It makes no difference that Kando pressed forward and filed a complaint anyway. The chilling analysis depends on the reaction of a ‘person of ordinary firmness,’ not the individual plaintiff.”
The members of the majority added that “Kando has presented evidence of causation because Magaña made the threat in direct response to her complaints about the agency.”
No Qualified Immunity
They said Magna was not entitled to qualified immunity because that does not exist where there is a violation of a clearly established right, and precedents make clear “that officials violate the First Amendment when they threaten retaliatory punishment for protected activity.”
The judges declared:
“Magaña’s alleged threat employed the coercive apparatus of the government because it was issued by a government official over a government phone line in the course of his duty of responding to citizen complaints. The threatened legal action—which had no apparent legitimate basis—could plausibly have been understood to involve the government as well. The Fust Amendment protects citizens from just this sort of government abuse. It does not permit officials to threaten citizens on the government’s behalf.”
VanDyke’s Opinion
VanDyke protested:
“Although criticism of the government is indubitably protected speech…, it is a much more difficult question whether a government official’s threat to sue someone for criticizing them is the type of adverse action that can form the basis for a First Amendment retaliation claim. Litigation activity is itself protected by the First Amendment, and it is far from obvious whether someone can raise a First Amendment claim against a government official for exercising (or here, threatening to exercise) then own First Amendment rights. But precisely since that question has not been ‘clearly’ addressed or decided one way or the other in our precedent, qualified immunity applies and I would affirm the district court’s decision in its entirety.”
He noted:
“Kando only claims that Magaña threatened to sue her in response to her criticisms. I am not aware of any cases—and neither the majority nor Kando cite any—where a court has clearly concluded that a mere threat to sue alone is sufficient for a First Amendment retaliation claim.”
Criticizes Miller, Paez
Criticizing his colleagues, VanDyke wrote:
“In concluding that qualified immunity does not apply, the majority invents facts contained nowhere in our record. Specifically, the majority revises Kando’s vague and equivocal assertion that Magaña merely threatened to sue her into the assertion that he threatened to sue her with a lawsuit that had ‘no apparent legitimate basis.’ There are two independent problems with this—one factual and one legal.
“First, Kando never said that Magaña threatened her with an illegitimate lawsuit. That is something the majority has just made up. While of course at the summary judgment stage we must construe disputed facts in favor of the nonmovant…, that is not a license for the majority to assume Magaña threatened something that nobody has ever said Magaña threatened: a baseless lawsuit. All Kando stated was that Magaña said ‘he wanted to go to court and sue me.’ ”
Qualified Immunity Lies
He went on to say:
“Second, the majority seems to be operating under the assumption that if Magaña had threatened to bring a frivolous lawsuit against Kando. that such a threat could suffice as the basis for a retaliation claim. Maybe so. as a matter of constitutional law. But you must get past qualified immunity first. And there is simply no clearly established caselaw recognizing a retaliation claim where an official responds to a citizen’s behavior by threatening to sue her—legitimate lawsuit or not. So even if the record reflected the majority’s attempted subtle revision, Kando’s claim would still run squarely into qualified immunity.”
He said that “because Kando hasn’t provided us with any remotely on-point authority addressing that question, the issue of qualified immunity in this case is an easy one,” maintaining that it applies.
Paez was appointed by President Bill Clinton and Miller and VanDyke were chosen by President Donald Trump.
The case is Kando v. City of Long Beach, 21-56199.
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