                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          May 24, 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DALE E. MCCORMICK; CURTIS A.
    KASTL, II,

                Plaintiffs - Appellants,

    v.                                                   No. 04-3279
                                                 (D.C. No. 03-CV-2195-GTV)
    CITY OF LAWRENCE, KANSAS;                              (D. Kan.)
    MIK SHANKS; SCOTT HOFER;
    WARREN BURKET; JUSTIN
    STIPANOVICH; DEAN BROWN;
    MIKE PATTRICK; KIRK FULTZ;
    MARK KNIGHT; LEO SOUDERS;
    JAMES WHITE; RON OLIN, Police
    Chief,

                Defendants - Appellees.




                             ORDER AND JUDGMENT           *




Before HENRY , ANDERSON, and MURPHY , Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiffs Dale E. McCormick and Curtis A. Kastl, II, appeal the dismissal

of their suit under 42 U.S.C. § 1983 against the City of Lawrence, Kansas; the

police chief; several police officers; and an assistant district attorney. The

district court resolved the case in a series of detailed and thoughtful orders,

dismissing certain claims and entering summary judgment on others. After

construing the parties’ filings liberally and reviewing the district court’s orders   de

novo , we affirm. See Santana v. City of Tulsa , 359 F.3d 1241, 1243 (10th Cir.

2004) (stating that this court applies    de novo review to a district court’s grant of

summary judgment and Rule 12(b)(6) motions);           Haines v. Kerner , 404 U.S. 519,

520-21 (1972) (requiring liberal construction of pro see pleadings).

                                         Background

       Plaintiffs consider themselves to be “constitutional rights activists and

vocal critics of the Lawrence, Ks., police department.” Aplt. Br. at 1. They

assert that one or both of them have verbally protested police activity on

approximately fifty occasions. They recorded their protests of officers’

conducting a sobriety checkpoint on June 28, 2002, and a traffic stop on July 13,

2002. As a result of their activities, plaintiffs allege that police officers have

retaliated by threatening plaintiffs with arrest, charging them with crimes,


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attacking them, searching their video and audio recording devices, and destroying

tapes.

          The district court dismissed plaintiffs’ claims of unreasonable search and

seizure against police officers and malicious prosecution against an assistant

district attorney.   McCormick v. City of Lawrence , 289 F. Supp. 2d 1264, 1268-69

(D. Kan. 2003) (dismissing unreasonable search and seizure claims on qualified

immunity grounds);      McCormick v. City of Lawrence , No. Civ. A 03-2195-GTV,

2003 WL 22466188, *6 (D. Kan. Aug. 14, 2003) (dismissing assistant district

attorney based on prosecutorial immunity).

         Later, it entered summary judgment on plaintiffs’ remaining claims.

McCormick v. City of Lawrence , 325 F. Supp. 2d 1191 (D. Kan. 2004). The court

determined that plaintiffs’ allegations did not meet the pattern or injury

requirements of the Racketeer Influenced and Corrupt Organizations Act (RICO),

18 U.S.C. §§ 1961-1968.      Id. at 1208-09. It also decided defendants were entitled

to qualified immunity on plaintiffs’ constitutional claims. The First Amendment

claims failed because plaintiffs’ resort to personal epithets meant that they were

“engaged in ‘fighting words,’ rather than protected speech.”    Id. at 1201(citing

Cohen v. California , 403 U.S. 15, 20 (1971);    Chaplinsky v. New Hampshire , 315

U.S. 568, 572 (1942)); see also id. at 1207. Concerning plaintiffs’ claim that

defendants destroyed some of their audio and video tapes, the court concluded


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that destruction of recordings was not a clearly established First Amendment

violation. Id. at 1203-04, 1205-06. As to the Fourth Amendment claims, the

officers had probable cause to arrest and search plaintiffs, as well as search and

seize their recording devices, based on a probable violation of a city ordinance

prohibiting interference with an officer’s carrying out an official duty.   Id. at

1204-05. Moreover, the officer’s “use of force was reasonable and commensurate

with the resistance offered by Plaintiff McCormick,” so there was no exercise of

excessive force.   Id. at 1205. Because plaintiffs failed to show constitutional

violations on the part of police officers, the claims against the police chief and

the municipality were dismissed as a matter of law.        Id. at 1209. Having

disposed of all of plaintiffs’ federal claims, the court declined to exercise

supplement jurisdiction over their state law claims.       Id. at 1206.

       On appeal, plaintiffs argue that the district court erred in dismissing the

unreasonable search of property and malicious prosecution claims. They also

assert that summary judgment was improper because their verbal protests were

“unequivocally cloaked in ‘special protection’ by the First Amendment, that such

protection has been ‘clearly established’ for decades, and that no reasonable

officer could perceive otherwise.” Aplt. Br. at 16.

       Having reviewed the briefs, the record, and the applicable law, we conclude

that the district court correctly decided this case. We therefore AFFIRM the


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judgment for substantially the same reasons stated by the district court in

McCormick v. City of Lawrence , 289 F. Supp. 2d 1264; McCormick v. City of

Lawrence , No. Civ. A 03-2195-GTV, 2003 WL 22466188; and         McCormick v. City

of Lawrence , 325 F. Supp. 2d 1191.

                                                    Entered for the Court


                                                    Michael R. Murphy
                                                    Circuit Judge




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