BRIAN BOQUIST V. PETER COURTNEY, No. 20-35080 (9th Cir. 2022)
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Oregon minority-party state senator alleged that majority party members retaliated against him for engaging in protected speech when Defendants ordered him not to enter the state capitol without giving them 12 hours advance notice.
The Ninth Circuit reversed the district court’s dismissal of Plaintiff’s First Amendment retaliation claim. The court held that Plaintiff’s complaint raised a plausible inference that he was engaged in protected speech. However, in considering Defendants’ argument that Plaintiff’s speech was unprotected fighting words, the court held that at the motion to dismiss stage, it could not say that Plaintiff’s statements created a likelihood that the person addressed would make an immediate violent response.
The court explained that an elected official raising a First Amendment retaliation claim has the initial burden of pleading and proving that: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. Upon such a showing, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of.
Here, Plaintiff satisfied the second prong of the prima facie test and his complaint plausibly alleged that his speech played a part in the retaliation. Thus, Defendants’ affirmative defense was not grounds for dismissal at the pleading stage.
Court Description: Civil Rights. The panel reversed the district court’s dismissal of a First Amendment retaliation claim in an action brought by Oregon minority party state senator Brian Boquist who alleged that majority party members retaliated against him for engaging in protected speech when, in response to two statements made by Boquist, defendants ordered him not to enter the state capitol without giving them 12 hours advance notice. After minority party state senators in Oregon walked out of the state senate to prevent a quorum, members of the majority party threatened to send the state police to arrest them and return them to the capitol. Boquist made two statements stating he would resist any such attempt to arrest him. The first, made on the floor of the senate, stated in part: “Mr. President, and if you send that state police to get me, Hell’s coming to visit you personally.” The second, made to a reporter in the state capitol building, stated in part: “This is what I told the [state police] superintendent: Send bachelors and come heavily armed. I’m not going to be a political prisoner in the state of Oregon. It’s just that simple.” The panel stated that an elected official raising a First Amendment retaliation claim has the initial burden of pleading and proving that: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary 4 BOQUIST V. COURTNEY firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. Upon such a showing, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of. The panel additionally explained that the framework that applies to evaluating speech restrictions that the government imposes on its employees is not applicable to evaluating restrictions on the speech of elected officials. Nor does the balancing test set forth in Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 564 (1968), apply to an elected official’s claim of First Amendment retaliation by the official’s elected peers. Applying the foregoing framework, the panel held that there was no doubt that Boquist’s complaint raised a plausible inference that he was engaging in protected speech. In considering defendants’ argument that Boquist’s statements were not protected because they constituted unprotected fighting words, the panel held, that at the motion to dismiss stage, it could not say that Boquist’s statements created a likelihood that the person addressed would make an immediate violent response. Even a statement that appears to threaten violence may not be a true threat if the context indicates that it only expressed political opposition or was emotionally charged rhetoric. Boquist satisfied the second prong of the prima facie test because his complaint plausibly alleged that the 12-hour notice rule was a materially adverse action. Finally, Boquist’s complaint plausibly alleged that his speech played a part, substantial or otherwise, in the retaliation. On remand, defendants were free to raise the affirmative defense that, in BOQUIST V. COURTNEY 5 instituting the 12-hour notice rule, they were motivated by vital information conveyed by Boquist’s speech that raised an objectively legitimate need to implement security measures and that justified the particular measures they chose. But defendants’ affirmative defense was not apparent as a matter of law from the face of the complaint and was therefore not grounds for dismissal at the pleading stage.
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