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Peltier v. Sacks

United States District Court, W.D. Washington, Tacoma

July 16, 2018

LEONARD PELTIER, CHAUNCEY PELTIER, Plaintiffs,
v.
JOEL SACKS, individually and in his capacity as DIRECTOR OF the WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES; TIMOTHY CHURCH, individually and in his capacity as PUBLIC AFFAIRS MANAGER of the WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES; JAY INSLEE, individually and in his capacity as GOVERNOR of the STATE of WASHINGTON, Defendant.

          ORDER ON MOTION FOR SUMMARY JUDGMENT

          RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Defendants' Motion for Summary Judgment [Dkt. #42]. Plaintiff Leonard Peltier claims Defendants violated his first amendment rights when they prematurely removed four of his paintings from a Department of Labor and Industries exhibit promoting Native American heritage month. [Dkt. #1].

         I. BACKGROUND

         Leonard Peltier is a Native American convicted of murdering two FBI agents and is serving a life sentence. Peltier has become an established painter during his more than 40 years in prison. Leonard Peltier's son, Chauncey[1], manages an art gallery featuring Leonard's paintings.

         Defendant Timothy Church is the public affairs manager of the Washington State Department of Labor and Industries. Defendant Joel Sacks is the Director of L&I. Defendant Jay Inslee is the Governor of Washington.

         In November 2015, L&I held a month-long Native American heritage event at its Tumwater office. Chauncey Peltier agreed to loan four of Leonard Peltier's paintings for the event, and the paintings were exhibited in the L&I building's rotunda.

         Soon after exhibiting Peltier's art, L&I received at least three complaints from people upset that it was promoting an artist who had been convicted of murdering two FBI agents. Two of these complaints were from former FBI agents. L&I removed Peltier's paintings two weeks before the exhibit was over.

         Leonard (and Chauncey) Peltier sued, claiming the removal violated Leonard's federal and Washington State constitutional rights. He also sued for intentional infliction of emotional distress and negligence.

         Defendants seek summary judgment on all claims. They argue that the display was L&I's speech-not Peltier's-and the first amendment does not apply to government speech. [Dkt. 53 at 2]. Defendants Sacks and Inslee argue that Peltier's claims against them fail as a matter of law because they were not personally involved in removing Peltier's paintings. All Defendants argue that no reasonable jury would find that removing the paintings was outrageous, and that they did not intentionally inflict emotional distress on Peltier. They argue that Peltier's negligence claim fails because there is no tort duty sounding in negligence arising from the constitution. Defendants also argue that there is no private cause of action for violations of Washington's constitution.

         Peltier argues that his paintings were his speech, not the government's. He argues that Sacks and Church took responsibility for removing the paintings, and that Inslee must have participated in the decision to remove them because he is the “highest decision-maker in the state.” Peltier argues that Defendants acted with an “extreme attitude” toward his first amendment rights, and with “reckless disregard” for the emotional distress that censoring his art would cause. He argues that Defendants owed him a duty to not “trample on his first amendment rights, ” which should give rise to a negligence claim. Peltier concedes he has no private claim for money damages under the Washington constitution; he now seeks a (mandatory) injunction requiring L&I to display his paintings.

         II. LEGAL STANDARD

         Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986) Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. The moving party bears the initial burden of showing that there is no evidence which supports an element essential to the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, the nonmoving party then must show that there is a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine issue of material fact, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323-24.

         There is no requirement that the moving party negate elements of the non-movant's case. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). Once the moving party has met its burden, the non-movant must then produce concrete evidence, without merely relying on allegations in the pleadings, that there remain genuine factual issues. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         III. DISCUSSION

         A. First Amendment Claim

         Section 1983 affords plaintiffs a cause of action for constitutional violations on the part of local government bodies and other state officials. Sintra, Inc. v. City of Seattle, 131 Wash.2d 640, 652, 935 P.2d 555, 562 (1997).

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) the violation of the rights secured by the Constitution and laws of the United States, and (2) the deprivation was committed by a person acting under color of state law. Parratt v. Taylor, 452 U.S. 527, 535, 101 S.Ct. 108 (1981) (emphasis added). To be liable, the wrongdoer must personally cause the violation. Leer v. Murphy, 844. F.2d 628, 633 (9th Cir. 1988). There is no respondeat superior or vicarious liability. Polk County v. Dodson, 454 U.S. 312 (1981). A supervisor may be liable under § 1983 only if he “participated in or directed the violation, or knew of the violation and failed to prevent it.

         1. The Native American heritage month event was not government speech

         Defendants first argue that the art exhibit was L&I's-the government'-speech, not Peltier's. They claim they decided what forms of art and which art to use in the display, not Peltier, and that his first amendment rights were not impacted by their decision to remove his paintings form their display. Peltier contends that the Native American heritage month event was a public event intended to promote the speech of Native American artists, and that Defendants infringed on his first amendment rights when they effectively censored his speech.[2]

         The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009). When the government sets the overall message and approves every word disseminated, it is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources in developing specific messages. Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 553 (2005).

         While the government-speech doctrine is important-indeed, essential-it is susceptible to dangerous misuse. Matal v. Tam, 137 S.Ct. 1744, 1758 (2017). If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. Id.

         In determining whether the government speech doctrine applies to a given situation, the question is whether the government acted to facilitate private speech, or to promote its own message. Johanns, 544 U.S. at 553.

         Defendants' argument that Peltier's paintings were government speech is based on Pleasant Grove. There, a City's refusal to include a religious group's artwork in a city monument did not violate the First Amendment because the monument was government speech. See Pleasant Grove, 555 U.S. 460. The monument consisted of several different art pieces relating to the history of the city, including some pieces that were donated by private citizens. Because the City set a clear “message” for the monument-the City's history-and erected it permanently in a public park, the monument was government speech. While government approval was an important factor in determining whether the government speech doctrine applied, it certainly was not the only factor. The overall focus in Pleasant Grove was on whether a reasonable observer would view the statement made to be a statement by the government. See Eagle Point Educ. Ass'n v. Jackson Cty. Sch. Dist. No. 9, 880 F.3d 1097, 1103 (9th Cir. 2018). In the context of a permanent monument at a public park there was little chance that observers would fail to appreciate the identity of the speaker. Thus, the monument was government speech as a matter of law. Pleasant Grove, 555 U.S. 460 at 471.

         In this case, the identity of the speaker is not so clear. Promotional materials for the heritage month event advertised Peltier individually, encouraging onlookers to “come see art by the renowned Native American artist Leonard Peltier, ” and including a link to Peltier's website. Other materials for the event advertised Native American dance performances, story telling, movie screenings, and discussions. A reasonable observer could have seen the event poster and believed that the speakers were the Native American artists that were listed and promoted individually. Likewise, an observer who saw the poster promoting Peltier's paintings certainly could have identified the intended speaker as ...


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