Fenn v. City of Truth or Consequences
983 F.3d 1143
10th Cir.2020Background
- The City converted the Lee Belle Johnson Center (formerly a senior/community center) into a leased multi-tenant facility including Spaceport America; Ron Fenn repeatedly protested the change on the premises.
- Tenants complained about Fenn’s conduct (offensive behavior, soliciting, putting up posters); police issued three no‑trespass notices over time and he was convicted in 2015 for conducting business without a license.
- In June 2017 officers arrested Fenn for criminal trespass after he remained in common areas despite orders to leave; the trespass charge was later dismissed without prejudice by the district attorney citing insufficient evidence.
- Fenn sued under 42 U.S.C. § 1983 for First Amendment retaliation and malicious prosecution (against officers and the police chief), pleaded Monell and supervisory claims against the City and chief, and alleged state malicious abuse of process.
- The district court granted qualified immunity to the individual defendants and summary judgment for the City; the Tenth Circuit affirmed, holding (1) no constitutional violation and (2) no probable‑cause defect to support the remaining claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment retaliation | Fenn was engaging in protected protest/assembly and was arrested for that speech | Center is a nonpublic forum; officers had probable cause for arrest after no‑trespass notices and tenant complaints | No First Amendment violation: center is nonpublic forum and probable cause (and no Nieves comparator evidence) bars claim |
| Malicious prosecution (§1983) | Prosecution terminated in his favor (dismissed for insufficient evidence) and there was no probable cause | Officers had probable cause based on tenants’ complaints and multiple no‑trespass notices | Dismissed: termination may be favorable for summary judgment but probable cause existed, defeating the claim |
| Monell / supervisory liability | City and chief liable for deprivations of constitutional rights by their agents | Municipality/supervisor cannot be liable absent an underlying constitutional violation | Dismissed: no underlying constitutional violation, so Monell/supervisory claims fail |
| Malicious abuse of process (state law) | Criminal complaint was filed maliciously and without probable cause | Plaintiff must show lack of probable cause or subsequent abuse of process; none shown | Dismissed: no showing that the criminal complaint lacked probable cause or that process was subsequently abused |
Key Cases Cited
- Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (forum doctrine; nonpublic vs traditional public forum)
- Perry Ed. Ass’n v. Perry Local Ed. Ass’n, 460 U.S. 37 (public forum analysis)
- Hawkins v. City & County of Denver, 170 F.3d 1281 (10th Cir. 1999) (leased/tenant areas not necessarily traditional public fora)
- Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (exception to probable‑cause bar when similarly situated non‑speakers not arrested)
- Hartman v. Moore, 547 U.S. 250 (retaliatory prosecution requires lack of probable cause)
- Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008) (malicious prosecution elements under § 1983)
- Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007) (probable cause: totality of circumstances standard)