Opinion
Case No. 2:04-CV-904 TS.
August 8, 2005
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION OR IN THE ALTERNATIVE, TO ALTER OR AMEND JUDGMENT
This matter is before the Court on Defendant's Motion for Reconsideration or in the Alternative, to Alter or Amend Judgment. Defendant argues that under law expressed in Lawrence v. Reed, 406 F.3d 1224 (10th Cir. 2005), the Court's May 31, 2005 Order should be reconsidered. Specifically, Defendant maintains that even if the Utah statute at issue clearly violates established law, Defendant should nonetheless be immunized because the statute's enforcement against Mr. Winsness was not obviously unconstitutional. Defendant urges the Court to adopt what Defendant construes as a three-step qualified immunity analysis, citing Lawrence. According to Defendant, this analysis would probe (1) whether there was a violation of a federal statutory or constitutional right, (2) whether such law was clearly established at the time of the violation, and (3) whether "extraordinary circumstances" exist such that the violation of clearly establish law ought to be excused anyway. The Defendant's instant motion focuses on this third prong.
In Lawrence, the Tenth Circuit discussed two circumstances that would excuse an official who violated clearly established law. The first is where an officer consults with an attorney prior to acting. The Tenth Circuit noted that this can sometimes excuse a violation of clearly established law because such consultation may "prevent the official from knowing his actions" are unlawful. Id. at 1231. This circumstance is not present in the instant case. The second circumstance is where the unlawful conduct at issue was authorized by state law. Id. While the Tenth Circuit adopted the position that "[officials] should be able to rely on the legislature's determination that a statute is constitutional," id. at 1232 (citing Grossman v. City of Portland, 33 F.3d 1200, 1210 (9th Cir. 1994)), the Tenth Circuit also noted that "this principle is not without limit." Id. The limit that the Tenth Circuit set is as follows: "[officials] can rely on statutes that authorize their conduct — but not if the statute is obviously unconstitutional." Id. at 1232. Defendant asks the Court to find that the application of the statute in this case is not "obviously unconstitutional."
The Court now reviews the findings of its May 31, 2005 Order. In that Order, the Court found that, given the allegations contained in the Complaint, which the Court must treat as true in resolving a motion to dismiss, Plaintiff "altered the flag and displayed it for expressive purposes and in order to make a political statement." Complaint ¶ 9. Additionally, as discussed in the May 31, 2005 Order, even if the motion was treated as a motion for summary judgment, the Court must construe the facts in the light most favorable to the nonmoving party. Accordingly, the Court relied on Plaintiff's affidavit, which reports that Plaintiff altered "the flag and displayed it for expressive purposes" and that Plaintiff "specifically told the Deputy that [he] was protesting [his] treatment by the judicial system." Winsness Affidavit ¶¶ 5 9. Hence, the Court concluded that Plaintiff altered the flag for expressive purposes, whether under the summary judgment standard or the motion to dismiss standard.
Consequently, the Court's May 31, 2005 Order concluded that under the law expressed in the seminal case of Texas v. Johnson, 491 U.S. 397 (1989), the allegations in Plaintiff's Complaint and affidavit are adequate to support a finding that Defendant's enforcement of Utah Code Section 76-9-601 violated Plaintiff's rights under the First Amendment to the United States Constitution. Further, the Court also determined that Plaintiff's rights were "sufficiently clear that a reasonable official would understand that what he is doing violates [those] right[s]." May 31, 2005 Order at 6 (citing Denver Justice And Peace Committee, Inc. v. City Of Golden, 405 F.3d 923 (10th Cir. 2005)).
The Court now addresses the exception Defendant urges the Court to adopt. This "extraordinary circumstances" exception, at least as applicable to these facts, turns on the question of whether it is obviously unlawful for an officer to issue a citation to a citizen when the sole wrongdoing at issue is altering a flag for expressive purposes. Given the prominence of Texas v. Johnson in our political and legal landscape and the facts that the Court must assume to be true in resolving Defendant's motion, the Court finds the exception discussed in Lawrence is inapplicable here.
The Court underscores the importance of the current procedural posture in the Court's determination. Defendant argues, as she did in her prior briefing, that she should be excused from the enforcement action taken against Mr. Winsness because she was not aware that Mr. Winsness desecrated the flag for some "expressive purpose." Defendant argues that abusing a flag for nonexpressive purposes is not obviously unconstitutional. However, even if the Court were to agree with Defendant's position, these are not the facts at issue here. As discussed above, in viewing Defendant's motion as a motion to dismiss or alternatively as a motion for summary judgment, the Court must come to the same result, namely that Mr. Winsness actions were motivated by expressive purposes and that Defendant knew it. These facts make the ambiguity in the law beyond the Court's grasp. While the finder of fact may determine the facts to be otherwise, it would be inappropriate for the Court to supplant itself for the finder of fact.
Therefore, the Court DENIES Defendant's Motion for Reconsideration, or in the Alternative, to Alter or Amend Judgment.