By AMY LONG
Two former BYU students are unable to sue the University of Utah. A Federal judge dismissed their claims Tuesday.
Plaintiffs Stephen Jenkins and John Paul Kennedy filed suit against the U of U shortly after charges against them were dismissed, according to the Associated Press.
Jenkins and Kennedy were cited in 1994 by University of Utah Campus Police for selling objectionable T-shirts before a BYU vs. U of U football game.
Assistant Attorney General Barbara Ochoa said the university was only trying to protect a trademark. The U of U views the red block capital “U”, which appeared on the shirts, as an integral part of its trademarked logo.
“The unpleasantness of all of this continues to be totally ignored by the state,” said U.S District Judge Dee Benson in the Tuesday hearing reported by the Associated Press.
“The granted motion to dismiss, only affected the former students’ claims against the university itself,” said John Paul Kennedy, Sr., attorney for the plaintiffs.
A suit specific to Russell Messerly, Assistant Manager of the U of U bookstore, is still awaiting trial.
Both suits contain three causes. The first sought relief on civil rights grounds. Malicious prosecution and federal anti-trust claims complete the suits, Ochoa said.
“Civil rights are only applicable to people,” Ochoa said.
The civil rights charge could not be brought against the U of U because an agency is not considered a person, Ochoa said.
“Under the law, the U of U is considered an arm of the state, not a person,” Kennedy said.
The university, as a government agency, cannot be sued for malicious prosecution because it is protected by state law, Ochoa said.
Benson argued that the former students were confronted, detained and incorrectly told by U of U police that what they were doing with the T-shirts was unlawful, according to an AP report.
“The plaintiffs were clearly wronged,” Kennedy said. The judge wanted to know why the state was not willing to issue an apology.
Ochoa maintains that the red block “U” should be protected by the trademark law. She feels the U of U acted correctly, and should not give an apology.
In addition to charging the former students with theft of trademark, the university’s actions interfered with time-sensitive matters, Kennedy said.
The U of U confiscated the plaintiff’s T-shirt business. This prevented them from making money from sale of the T-shirts.
It was necessary to file claims against the University of Utah and Messerly because the plaintiffs were damaged, Kennedy said.
The state plans to file a motion to dismiss the charges against Messerly, asking for qualified immunity, the AP reported.