Can a police officer be granted qualified immunity for failing to enforce a "patentially unconstitutional" protest zone?

MultiRegion, United States of America

The following excerpt is from Saved Magazine v. Spokane Police Dep't, 20-36073 (9th Cir. 2021):

Our decision in Grossman v. City of Portland is instructive on this point. 33 F.3d 1200 (9th Cir. 1994). in Grossman, we granted qualified immunity to an officer because his "allegedly unconstitutional action" was simply to enforce "an ordinance which was duly enacted by the city council." Id. at 1209. Although we concluded that the ordinance violated the First Amendment, the officer's enforcement of that ordinance was not clearly unconstitutional. Id. at 1207-08. This is because law enforcement officers may generally reasonably assume that "policies or orders promulgated by those with superior authority" are constitutional unless those policies or orders are "patently violative of fundamental constitutional principles." Id. at 1209. in Grossman, we granted qualified immunity to the officer even though we concluded the ordinance was unconstitutional because the ordinance "was not so obviously unconstitutional as to require a reasonable officer to refuse to enforce it." Id. at 1210. Here, Plaintiffs do not even allege that the underlying protest zone scheme was unconstitutional, much less "patently" unconstitutional.

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