Preview: Qualified Immunity, Viewpoint Discrimination, and the Troubling Implications of Weise v. Casper


Kelson Bohnet

Do all citizens have a constitutional right to attend public events regardless of political viewpoint, or may government agents exclude dissenting attendees?

In January 2010, the Tenth Circuit Court of Appeals decision in Weise v. Casper wrongfully subordinated political expression concerns and instead gave public officials wider latitude to discriminate against dissenting citizens.

The court’s ruling arose from a Bivens action in which Leslie Weise and Alex Young brought suit against several executive officials. In 2005, Weise and Young obtained tickets to a speech in Denver, Colorado given by President Bush. They arrived at the event in Ms. Weise’s car, which had a bumper sticker reading “No More Blood For Oil.” Weise and Young were initially allowed to enter the event, but several officials soon decided to remove them from the premises.

The officials involved fully admitted that the ejection was solely due to the plaintiff’s bumper sticker, and that it was consistent with a previously established policy to exclude political opponents of the President from the President’s public appearances. The Federal District Court for the District of Colorado granted qualified immunity to the executive officials, thus barring any recovery for Weise and Young.

In a 2-1 decision, the Tenth Circuit affirmed the District Court’s grant of qualified immunity. Public officials are entitled to qualified immunity from suit unless their conduct violated a clearly established constitutional right. The two-judge majority found that the plaintiffs did not have a clearly established constitutional right to attend a Presidential speech and be free from ejection on the basis of their political viewpoint. This finding rested primarily on the reasoning that no previous qualified immunity or First Amendment cases could have put a reasonable executive official on notice that ejecting the plaintiffs violated their constitutional rights.

The Weise majority employed an overly narrow approach in its legal analysis. The court focused heavily on the lack of on-point precedent while deciding whether the plaintiffs’ claimed right was “clearly established,” but this approach largely ignored the Supreme Court’s prior warnings that public officials can still violate the Constitution in factually novel circumstances. Moreover, the court also made no explicit connection between the plaintiffs’ protected expression and the defendants’ later actions, thereby failing to conclude that the ejection constituted impermissible viewpoint discrimination under the First Amendment.

The Weise decision carries troubling implications. Future civil rights litigants in the Tenth Circuit face a higher burden in defeating a claim of qualified immunity. Consequently, politically expressive citizens face a greater possibility of government reprisal. By eschewing a thorough legal analysis, the court issued a shortsighted decision that threatens the future enforcement of legitimate civil rights claims.

For further explanation and analysis, see Kelson Bohnet, Qualified Immunity, Viewpoint Discrimination, and the Troubling Implications of Weise v. Casper, 88 Denv. U. L. Rev. __ (forthcoming 2011).