Klen v. City of Loveland, Colo.
2011 U.S. App. LEXIS 22802
10th Cir.2011Background
- Plaintiffs sought a Loveland building permit for Anasazi Phase 2 and faced extended delays; they elected for a core-and-shell permit by right, but alleged City insisted on additional requirements and delays.
- Plaintiffs allege City Hawkinson and Sprague misapplied permit requirements, delaying approvals and, at times, permitting work without a permit or after a stop-work order.
- Plaintiffs claim the City imposed ever-changing requirements (elevations, water taps, capital expansion fees) and manipulated records to hinder construction.
- Plaintiffs allege retaliatory acts included a wave of municipal citations to Ed Klen, alleged falsified affidavits, and forged permit documents to prosecute Klen.
- Plaintiffs contend the City inspector trespassed on Anasazi Phase 2 property, allegedly retaliating for the notice of intent to sue.
- The district court granted summary judgment for defendants on federal claims and declined to exercise jurisdiction over state-law claims; the appeals court reverses in part, affirms in part, and remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs’ private First Amendment speech was protected retaliation. | Klen pleaded protected private speech in criticizing city officials. | Speech involved private matters; not protected or not concern of public. | No, speech protected; summary judgment reversed on this claim. |
| Whether the Fourth Amendment was violated by the trespass inspection. | Hoskinson entered without warrant/consent; violation of privacy. | Unfinished commercial premises have reduced expectation of privacy; qualified immunity applies. | Not clearly established; qualified immunity; but remanded for Fourth Amendment issue against City. |
| Whether forged documents/false affidavits by City officials violated due process. | Use of perjured affidavit and forged permit app denied due process. | Prosecutorial immunity for Duval; Heck applicability issues; disputed causation. | Duval entitled to prosecutorial immunity; as to others, revocation of summary judgment on false-evidence claim; remanded for merits. |
Key Cases Cited
- Van Deelen v. Johnson, 497 F.3d 1151 (10th Cir. 2007) (public-concern speech rule limited to public employees)
- Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000) (elements for retaliation claims against non-employers)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1932) (fighting words doctrine)
- Cannon v. City & Cnty. of Denver, 998 F.2d 867 (10th Cir. 1993) (fighting words standard in the Tenth Circuit)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (contextual analysis of hate speech and violence potential)
- Kalina v. Fletcher, 522 U.S. 118 (1997) (absolute prosecutorial immunity for advocacy acts; exception for attestations as a witness)
- Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007) (absolute immunity for prosecutorial role; communications not in advocacy may be investigative)
- Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007) (due process protections and autonomy considerations in sanctions)