FILED
United States Court of Appeals
Tenth Circuit
June 1, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UTAH ANIMAL RIGHTS
COALITION, “UARC”, a Utah non-
profit corporation; PETER TUCKER;
ROB HUTTON; AARON LEE;
CHRISTOPHER COFFIN; JACOB Nos. 07-4275 & 07-4287
EVANS; and ASHLEY RACKL,
Plaintiffs - Appellants/
Cross - Appellees,
v.
SALT LAKE COUNTY, a body
corporate and politic of the State of
Utah,
Defendant - Appellee/
Cross - Appellant.
ART LOVATO and COREY
BULLOCK,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D. Ct. No. 2:07-CV-0070-DAK)
Brian M. Barnard, Utah Civil Rights & Liberties Foundation, Inc., Salt Lake City,
Utah, appearing for Appellants/Cross-Appellees.
David H.T. Wayment, Salt Lake County Deputy District Attorney, Salt Lake City,
Utah, appearing for Appellees/Cross-Appellants.
Before TACHA, MURPHY, and TYMKOVICH, Circuit Judges.
TACHA, Circuit Judge.
The plaintiffs-appellants are Utah Animal Rights Coalition (“UARC”) and
five individuals interested in animal rights issues. They filed this 42 U.S.C.
§ 1983 claim for alleged violations of their First Amendment rights to free speech
and to peaceably assemble after the individual plaintiffs attempted to protest a
circus in South Jordan, Utah. The district court entered summary judgment
against the plaintiffs. We have jurisdiction under 28 U.S.C. § 1291, and we
AFFIRM.
I. BACKGROUND
In 2004, plaintiff-appellant Peter Tucker conducted a small demonstration
near Abravanel Hall in Salt Lake City. A Salt Lake County employee ordered
him to stop. Mr. Tucker and UARC then sued Salt Lake County in federal court,
challenging county ordinances that require an advance permit thirty days before
conducting a public demonstration on county-owned property. See Salt Lake
County Mun. Code §§ 14.56.040, 14.56.060. The district court granted partial
summary judgment to the plaintiffs on their claim that the ordinances violated the
First Amendment, and then the parties settled. As a result of that lawsuit, Salt
Lake County attorneys instructed the sheriff’s office that the ordinances are not
-2-
enforceable against small, spontaneous demonstrations.
On February 1, 2007, Mr. Tucker and the four other individual plaintiffs in
this case engaged in the protest that is the subject of this lawsuit. Specifically,
they demonstrated outside a circus at the Salt Lake County Equestrian Park
(“Park”). The Park is owned by Salt Lake County but is located in the city of
South Jordan; therefore, under Utah state law, South Jordan ordinances apply on
Park property. See Utah Code Ann. § 17-50-304 (“A county may make and
enforce within the limits of the county, outside the limits of cities and towns, all
such local, police, building, and sanitary regulations as are not in conflict with
general laws.”) (emphasis added). Art Lovato and Corey Bullock are county
employees responsible for Park operations. They do not have law enforcement
authority.
After the individual plaintiffs had begun their protest, Mr. Bullock called
the South Jordan police. South Jordan Police Officers Raab and Page arrived and
told the protesters that they could not demonstrate at the Park because they did
not have a permit, as required by South Jordan law, and that if they did not leave
the Park they would be arrested. The protesters ended their demonstration and
left. The details surrounding the circumstances of the incident are recounted later
in this opinion.
One week later, the plaintiffs sued South Jordan City, Officer Page, and
Officer Raab (“the South Jordan defendants”); and Salt Lake County, Mr. Lovato,
-3-
and Mr. Bullock (“the county defendants”). UARC sought declaratory and
injunctive relief; the individual plaintiffs sought damages, in addition to
declaratory and injunctive relief. Before the answer was due, the South Jordan
defendants settled. They agreed to review the constitutionality of South Jordan’s
laws regarding free expression and demonstrations. See South Jordan Mun. Code
§§ 12.12.00, 5.92.00. The South Jordan defendants also agreed to allow the
plaintiffs to engage in small, spontaneous demonstrations in the city without
giving advance notice or securing a permit. By stipulation of the parties, the
court dismissed all claims against the South Jordan defendants.
After the South Jordan defendants had settled, the plaintiffs filed an
amended complaint naming only the county defendants. They alleged that Mr.
Lovato and Mr. Bullock violated their rights by enforcing the Salt Lake County
ordinances that had previously been found to be unconstitutional as applied to
small, impromptu demonstrations. In their answer, the county defendants denied
that county ordinances apply to the Park, asserting that South Jordan ordinances
govern. The county defendants admitted that Salt Lake County cannot require an
advance permit for small, spontaneous demonstrations such as the plaintiffs’
demonstration, but they denied that anybody tried to enforce the ordinances.
The county defendants moved for summary judgment. Of importance here,
they argued that the conduct of the South Jordan defendants—not that of the
county defendants—caused the deprivation of the plaintiffs’ rights. The county
-4-
defendants noted that only South Jordan law applied to the Park, and that the
plaintiffs’ own complaint made it clear that no person ever mentioned Salt Lake
County ordinances. The district court agreed with the county defendants, holding
that “Plaintiffs have not affirmatively linked the Salt Lake County employees to
any constitutional violation alleged in the Complaint.” Utah Animal Rights
Coalition v. Salt Lake County, 2007 WL 3046663, at *1 (D. Utah Oct. 16, 2007).
In the alternative, the court held that the county defendants did not act under
color of law in calling the South Jordan police. Id. at *1–2. The plaintiffs
appeal. 1 The county defendants cross-appeal the district court’s failure to award
them costs and attorneys’ fees.
II. DISCUSSION
A. Standing
1
The plaintiffs also filed a motion for summary judgment, which the district
court denied after granting the defendants’ motion. In this appeal, the plaintiffs
purport to contest both the entry of summary judgment against them and the
denial of their motion for summary judgment. Unlike the grant of a motion for
summary judgment, the denial of a motion for summary judgment is not a final
order and is therefore usually not appealable. See Weise v. Casper, 507 F.3d
1260, 1269 (10th Cir. 2007). To the extent the grant of the defendants’ motion
for summary judgment makes the denial of the plaintiffs’ motion appealable, our
decision today affirming judgment for the defendants precludes us from giving
the plaintiffs the relief they request.
We also note that the appendix only contains the plaintiffs’ opposition to
the defendants’ motion for summary judgment. Although we have obtained the
relevant pleadings, we remind the plaintiffs of their obligation to include in their
appendix the county defendants’ motion for summary judgment and the
defendants’ reply, and we further remind the plaintiffs that the failure to submit a
complete appendix is grounds for summary affirmance. See Burnett v. Sw. Bell
Tel., L.P., 555 F.3d 906, 909–10 (10th Cir. 2009).
-5-
As an initial matter, the defendants question whether UARC and the
individual plaintiffs have standing to seek an injunction enjoining them from
prohibiting small, spontaneous demonstrations in the future. Because this issue
goes to our jurisdiction, we must address it before proceeding to the merits. See
Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1087 (10th Cir. 2006) (en
banc).
The Constitution limits the jurisdiction of federal courts to “[c]ases” and
“[c]ontroversies.” U.S. Const. art. III, § 2. To establish a justiciable case or
controversy, a plaintiff must demonstrate that he has “suffered an ‘injury in fact,’
that the injury is fairly traceable to the challenged action of the Defendants, and
that it is redressable by a favorable decision.” Walker, 450 F.3d at 1087. The
Supreme Court has defined “injury in fact” as “an invasion of a legally protected
interest which is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (quotations and citations omitted). Although a plaintiff is not required to
subject himself to actual arrest as a result of exercising his First Amendment
rights, it is equally well-established that “[a]llegations of possible future injury
do not satisfy the injury in fact requirement.” Walker, 450 F.3d at 1087
(quotations omitted). The party invoking federal jurisdiction—here, the
plaintiffs—bears the burden to demonstrate standing. Utah Ass’n of Counties v.
Bush, 455 F.3d 1094, 1100 (10th Cir. 2006).
-6-
1. UARC’s Standing
In support of UARC’s claim for prospective relief, the first amended
complaint alleges the following:
UARC has in the past conducted public demonstrations, free
speech activities and out reach actions with regard to animal rights
issues in Utah. UARC has done so on public streets and sidewalks
and on government property open to the public in various cities in
Utah.
UARC . . . ha[s] conducted public protests, demonstrations,
free speech activities and out reach actions on property belonging to
Salt Lake County, including Abravanel Hall in downtown Salt Lake
City.
UARC . . . ha[s] conducted public protests, demonstrations,
free speech activities and out reach actions on an impromptu or
spontaneous basis.
In 2004, UARC . . . brought suit in the United States District
Court for the District of Utah against Salt Lake County and others
challenging, inter alia, the County’s ban, absent advance permits, on
small spontaneous demonstrations on property belonging to Salt Lake
County. . . . That ban had caused harm to UARC . . . .
The County ordinances at issue in this action were at issue in
the prior case.
UARC . . . will be harmed by the enforcement of the County’s
continued ban on small spontaneous demonstrations on property
belonging to Salt Lake County.
These allegations do not persuade us that UARC has standing to bring a
claim for injunctive relief. UARC has never identified its alleged injury, stating
only the conclusion that it “will be harmed by the enforcement of the County’s
continued ban on small spontaneous demonstrations.” UARC does not claim that
-7-
it wants to demonstrate in the future. Nor does UARC claim that a prohibition on
speech regarding animal rights undermines its outreach or educational efforts.
UARC simply states that it has been involved in prior litigation with Salt Lake
County and that it has been involved in protests in the past. Without a description
of the harm UARC will suffer if individual protesters cannot hold small,
spontaneous demonstrations, UARC has not met its burden to demonstrate an
injury in fact. 2 Therefore, UARC does not have standing to bring this claim.
2. Individual Plaintiffs’ Standing
In contrast to UARC, the individual plaintiffs have standing to seek an
injunction. Each of them has submitted affidavits demonstrating that they would
like to be able to protest in the future and that they fear the defendants will not
allow those protests. For example, Mr. Tucker averred that:
My right (and the right of other activists) to protest, to
assemble and to engage in free speech were, are and will be greatly
harmed and circumscribed by ordinances (like South Jordan City
§ 5.92.040 and § 12.12.020, and Salt Lake County §§ 14.56.010 et
seq.) which require advance notice of or permits for all
demonstrations regardless of size and advance planning . . . .
I want to be able to participate in small spontaneous
demonstrations in South Jordan City and at the Salt Lake County
2
We note that UARC does not contend that it has associational standing.
See Bush, 455 F.3d at 1099 (an association has standing to sue on behalf of its
members only if “‘(a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to the organization’s
purpose; and (c) neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.’”) (quoting Hunt v. Wash.
State Apple Adver. Comm’n, 432 U.S. 333, 342–43 (1977)).
-8-
Equestrian Park and Event Center without securing a permit and
without having to provide advance notice to the City or the County.
....
. . . I want court protection so that I can spontaneously
participate in demonstrations on Salt Lake County property and in
South Jordan, Utah without interference from the police and without
securing a permit or giving advance notice.
....
I am afraid that unless there is a court order the County
employees will act to force me off the grounds of the Equestrian Park
as occurred on February 1, 2007. I am afraid that unless there is a
court order the South Jordan police will order me not to demonstrate
in South Jordan unless I have a permit secured in advance, as
occurred on February 1, 2007.
The other individual plaintiffs’ affidavits contain similar averments. We
conclude that these allegations are sufficient to demonstrate that the individual
plaintiffs’ future injury—not being able to conduct a spontaneous
demonstration—is concrete and imminent, is fairly traceable to the action of the
county defendants, and would be redressable by a favorable decision. 3
3
As we go on to explain, summary judgment was warranted in this case
because the county defendants did not cause the individual plaintiffs to end their
protest. This not to say, however, that the individual plaintiffs have failed to
demonstrate, as part of the standing analysis, that their injury is traceable to the
defendants and redressable by a decision directed toward those defendants. We
have explained that “[f]or purposes of standing, we must assume the Plaintiffs’
claim has legal validity.” Walker, 450 F.3d at 1093. Otherwise, “every losing
claim would be dismissed for want of standing.” Id. at 1092. See also Bd. of
Educ. v. Spellings, 517 F.3d 922, 924 (7th Cir. 2008) (“A conclusion that a
litigant’s claim fails on the merits does not justify holding that the suit is
nonjusticiable.”).
-9-
B. Merits
“We review summary judgment decisions de novo, applying the same legal
standard as the district court.” Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101,
1104 (10th Cir. 2008). Summary judgment is appropriate if “there is no genuine
issue as to any material fact” and the moving party is entitled to a judgment as a
matter of law. Fed. R. Civ. P. 56(c). “When applying this standard, we view the
evidence and draw reasonable inferences therefrom in the light most favorable to
the nonmoving party.” Sanders, 544 F.3d at 1105 (quotations omitted).
To prevail on a § 1983 claim, a plaintiff must demonstrate that he was
deprived of his federal rights and that the deprivation was caused by a person
acting under color of state law. See Beedle v. Wilson, 422 F.3d 1059, 1064 (10th
Cir. 2005). The district court granted the county defendants’ motion for summary
judgment for two reasons: (1) the district court concluded that the undisputed
facts showed that the county defendants were not the cause of the plaintiffs’
alleged rights deprivation; and (2) the court held that the county defendants had
not acted under color of state law because they had simply called the police,
which is something any private citizen can do. We agree that the plaintiffs have
failed to show the requisite causal link between the county defendants’ conduct
and the disbanding of the protest, and we therefore affirm on those grounds
without reaching the color-of-law issue.
The record reveals the following facts. A circus employee wanted the
-10-
protest to stop. He asked the county employees for assistance. Mr. Bullock
called the South Jordan police. He averred to the following facts, which are not
contested by any other record evidence:
[I]ndividuals claiming to be with the Utah Animal Rights Coalition
staged a demonstration at the [Park].
The proprietor of the circus approached me and requested that the
protesters be evicted. Because the [Park] is located within the
incorporated city limits of South Jordan, I called South Jordan City
to determine what the legal requirements were, if any, for holding a
protest.
Eventually, South Jordan Police arrived and informed the protesters
that they would need a permit to protest within South Jordan.
I was unaware of any county ordinance bearing on this issue one way
or another.
I did not know what legal requirements, if any, there were for
protesting under these circumstances and simply deferred to the
South Jordan officers.
The plaintiffs video-recorded the encounter with the South Jordan police
officers. Our review of the video, which is quite instructional, shows that South
Jordan Police Officer Raab told the plaintiffs that they were in South Jordan, not
an unincorporated part of Salt Lake County, and that a South Jordan ordinance
required them to have a permit. One of the protesters told the police that they did
not need a permit for impromptu protests. When the officer disagreed, the
protester asked for documentation of the applicable law. Officer Raab told him
he could find the ordinance on South Jordan’s website. The protester asked for
-11-
the specific ordinance so he could speak to his lawyer. Officer Raab told him he
did not have it and again directed the protester to South Jordan’s website. The
protester responded that he did not have a computer with him.
At this point, Mr. Bullock told a protester, “if you don’t put the sign down
I’m going to trespass you off the property.” The plaintiffs, however, did not
leave. One of the protesters then asked for and received Officer Raab’s badge
number. The county employees spoke with the police officers, asking whether the
protesters needed a permit. An officer replied that he had talked it over with his
lieutenant, and that a person must have a permit to protest anywhere in South
Jordan. A protester asked whether they were on city or county property. The
police officer explained that the county owned the property, but that it was under
the jurisdiction of South Jordan. The officer offered an example, explaining that
even though the county owned the Park, Park vendors had to abide by South
Jordan’s liquor licensing requirements.
The protester was not satisfied with this answer and spoke with Mr.
Bullock and/or Mr. Lovato. 4 They repeatedly stated that they did not know what
the rules were regarding protests, but that South Jordan law applied to the Park.
One of the protesters explained that they had the same issue with county-owned
property at Abravanel Hall, and that they had won a prior lawsuit giving them the
right to hold small, impromptu protests on county-owned property. One of the
4
It is unclear from the recording which man is speaking at any given time.
-12-
county employees again stated that he was not familiar with the rules, which was
the reason he called the South Jordan police and the reason he had to “go with
what these gentlemen [the police officers] say tonight.”
Officer Raab then told the protesters that they were “done for the night” but
could get a permit for the next day. A protester asked what would happen if they
stayed. Officer Raab told them they would be arrested. Another man (apparently
Mr. Lovato or Mr. Bullock) said, “all right, that’s what the officer says, so I guess
we have to go with it.” The protesters put their signs away and left.
Based on the undisputed evidence and the plaintiffs’ theory of the case, as
articulated in their amended complaint, it is clear that the plaintiffs’ protest was
curtailed only upon the arrest threats given by South Jordan police officers, not
upon any action by Mr. Lovato or Mr. Bullock. The complaint unequivocally
states that “[b]ased on the threats of Officer Raab and Officer Page, [the
individual plaintiffs] ceased their demonstration, left the county property and
went home.” This allegation is borne out by the plaintiffs’ video of the
encounter, which shows them refusing to stop their protest and disagreeing with
Mr. Lovato and/or Mr. Bullock about the law until Officer Raab tells them they
will be arrested if they continue their demonstration. The plaintiffs’ affidavits
also show that they ended their protest only after the police warnings. All five of
their affidavits use the exact same language: “Based on the threats of Officer
Raab and Officer Page, I and the other four (4) activists ceased our demonstration
-13-
and went home.” (Emphasis added).
The plaintiffs also argue that Mr. Lovato and Mr. Bullock ordered them to
leave the Park before calling the police. However, there is no causal link between
this statement and the end of the plaintiffs’ protest. In fact, the plaintiffs admit
that this instruction had no effect. According to Mr. Coffin’s affidavit, Mr.
Hutton replied that the group “had a First Amendment right to be there and that it
was fine if he called the police.” Thus, any instruction to leave by Mr. Lovato or
Mr. Bullock did not silence the protesters.
To the extent the plaintiffs argue that Mr. Bullock’s statement “if you don’t
put the sign down I’m going to trespass you off the property” constituted a threat
that they would be arrested if they did not stop the demonstration, the record
reveals that the plaintiffs also were likewise undeterred by that comment. Mr.
Bullock made the statement approximately one minute into the five-minute long
video of the encounter with the police. The plaintiffs did not leave or stop
protesting after hearing the comment. Instead, they engaged both the police
officers and the county employees in a lengthy discussion regarding their rights,
which terminated only when the police told them they would be arrested if they
did not stop the protest. As we previously explained, the plaintiffs have
maintained throughout this lawsuit that “[b]ased on the threats of Officer Raab
and Officer Page, [the plaintiffs] ceased their demonstration, left the county
property and went home.” (Emphasis added).
-14-
For the first time on appeal, the plaintiffs highlight our statement in Snell v.
Tunnell, 920 F.2d 673 (10th Cir. 1990), that “[t]he requisite causal connection is
satisfied if the defendant set in motion a series of events that the defendant knew
or reasonably should have known would cause others to deprive the plaintiff of
her constitutional rights.” Id. at 700. The plaintiffs suggest that Mr. Lovato and
Mr. Bullock called the police believing that the police would force the plaintiffs
to stop protesting. The plaintiffs did not make this causal chain argument below,
and we generally do not consider new theories on appeal—even those that fall
under the same general category as one that was presented in the district court.
Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc., 100 F.3d 792,
798–99 (10th Cir. 1996). Thus, we will not consider this argument on appeal.
We further note that this line of reasoning is contradicted by the plaintiffs’ brief,
which states, “[t]his lawsuit was not filed because Lovato and Bullock called the
police. Suit was filed because Lovato and Bullock silenced the protesters.”
Finally, the plaintiffs repeatedly contended in their opposition to summary
judgment that the Salt Lake County permit ordinances are unconstitutional as
applied to small, spontaneous protests at the Park. Protests at the Park, however,
are not subject to Salt Lake County ordinances. Rather, because the Park is
within the South Jordan city limits, South Jordan laws apply. See Utah Code
Ann. § 17-50-304. Thus, Salt Lake County ordinances have no relevance to this
-15-
case, with respect to the causation issue or otherwise. 5
Accordingly, the district court correctly determined that Mr. Lovato and
Mr. Bullock are entitled to judgment as a matter of law. The undisputed facts
demonstrate that the actions of those defendants did not infringe on the individual
plaintiffs’ right to free speech or to peacefully assemble; rather, the protest was
disbanded upon the arrest threats of South Jordan Police Officers Page and Raab.
Further, because Mr. Lovato and Mr. Bullock did not violate the individual
plaintiffs’ rights, and because no Salt Lake County ordinance or policy is at issue
here, the district court properly determined that no liability lies against Salt Lake
County. For the same reasons, the claims for injunctive and declaratory relief
also fail.
C. Fees
The county defendants sought fees and costs in their motion for summary
judgment. “Unless a federal statute, [the Federal Rules of Civil Procedure], or a
court order provides otherwise, costs—other than attorney’s fees—should be
allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1); see also Klein v.
Grynberg, 44 F.3d 1497, 1506 (10th Cir. 1995) (“Rule 54(d) creates a
5
The plaintiffs simultaneously appear to recognize the inapplicability of
Salt Lake County ordinances on Park property, stating in their opposition to
summary judgment that “[i]t is of no moment, whether the individual defendants
were acting pursuant to the challenged ordinance and policy, contrary to the
challenged ordinance and policy, without knowledge of the challenged ordinance
and policy; or independently, on a lark or perhaps even beyond the scope of their
employment.”
-16-
presumption that the prevailing party shall recover costs.”). Although the denial
of costs is reviewed for abuse of discretion, we have explained that the court
“must provide a valid reason for not awarding costs to a prevailing party” under
Rule 54. Cantrell v. Int’l Bhd. of Elec. Workers, 69 F.3d 456, 459 (10th Cir.
1995). “Unless an appellate court knows why a trial court refused to award costs
to the prevailing party, it has no real basis upon which to judge whether the trial
court acted within the proper confines of its discretion.” Serna v. Manzano, 616
F.2d 1165, 1168 (10th Cir. 1980).
A court may order attorney’s fees in a § 1983 claim to a prevailing party
other than the United States. 42 U.S.C. § 1988(b). “While a prevailing plaintiff
ordinarily is entitled to attorney fees, a prevailing defendant in a civil rights
action may recover attorney fees only if the suit was vexatious, frivolous, or
brought to harass or embarrass the defendant.” Mitchell v. City of Moore, 218
F.3d 1190, 1203 (10th Cir. 2000) (quotations and citations omitted). This is a
high bar for a prevailing defendant to meet. Id.
In the order granting summary judgment to the county defendants, the
district court ordered each party to bear his own fees and costs without
explanation. The court then ordered the case closed. Utah Animal Rights, 2007
WL 3046663, at *2. The county defendants cross-appeal the denial of fees and
costs, contending that the district court abused its discretion because it denied
fees and costs without first allowing them to present argument on the issue and
-17-
because it did not provide reasons for the denial. We agree, as do the plaintiffs. 6
We thus remand to the district court with directions to provide the county
defendants with an opportunity to submit a bill of costs and a motion for § 1988
attorneys’ fees. If the court is still inclined to deny fees and/or costs, it shall state
its reasons for that decision on the record. See Serna, 616 F.2d at 1168
(remanding with the same directions regarding costs).
III. CONCLUSION
The part of the judgment ordering the parties to bear their own fees and
costs is REVERSED and REMANDED to the district court for further
proceedings consistent with the instructions set forth above. The judgment is
otherwise AFFIRMED.
6
In their reply brief, the plaintiffs acknowledge that, if we uphold summary
judgment for the defendants, the case should be remanded for a determination of
costs and attorneys’ fees.
-18-