Citizen thrown out of city council meeting allowed to go forward with some, but not all claims against presiding council member and police officer
Heaney v. Roberts, No. 15-31088 (5th Cir. January 23, 2017)
This is a First Amendment retaliation/discrimination case where the Plaintiff, Heaney, was ejected from a city council meeting allegedly due to his statements at the meeting.
On September 18, 2013, Tom Heaney attended a regularly scheduled Jefferson Parish council meeting in Gretna, Louisiana. He requested to speak and the rules allowed five minutes to address the City Council. Heaney wished to speak about the legality of council members accepting campaign contributions from contractors who received no-bid contracts. Roberts was the presiding officer at the meeting. Three minutes into his statements, Roberts interrupted and asked Heaney to yield the floor to the City Attorney. After the City Attorney advised he felt the council members’ actions were legal, Roberts did not allow Heaney the remaining two minutes of his time. However, Roberts had allowed prior speakers their allotted time after interruption. When Heaney became agitated, Roberts ordered his removal. Officer Ronald Black approached and removed Heaney. Heaney sued Black for negligence, assault and for the removal under the Fourth Amendment right to be free from seizure and First Amendment. Heaney sued Roberts for violating his First and Fourth Amendment rights. He also sued the City. All defendants filed summary judgment motions. The trial court granted in part and denied in part the summary judgment motions. The court denied Roberts’ motion on the First Amendment and state constitutional claims. It denied Black’s motion on the state law battery and negligence claims. The trial court granted summary judgment on the free speech claims as to Black, the Fourth Amendment claims as to Black and Roberts, the punitive damages claim, and the false arrest claims as to all. Everyone appealed something.
In a qualified immunity analysis under the Fourth Amendment, an officer is entitled to immunity if the law was not clearly established at the time. Viewpoint discrimination is a form of First Amendment discrimination which was been clearly established for some time. The government can restrict or regulate speech in a limited public forum “as long as the regulation ‘(1) does not discriminate against speech on the basis of viewpoint and (2) is reasonable in light of the purpose served by the forum.’” The trial court denied Robert’s claim of immunity because it determined a factual dispute exists regarding whether Robert’s conduct was viewpoint-based. If Heaney were to have violated a reasonable restriction, such as a topic or time constraint, there would be no constitutional violation. However, Heaney was speaking on an approved topic and within his allotted time. Because Heaney was not silenced for violating a reasonable restriction, the First Amendment claim turns on Roberts’ motive or intent in silencing and ejecting Heaney from the meeting. Due to the factual dispute, Robert’s immunity from First Amendment claims was properly denied. However, the trial court dismissed the punitive damages claims as it was persuaded no evil intent existed. “Although in many instances a factual dispute as to a constitutional violation will preclude summary judgment on punitive damages, it will not when there is no material question of fact as to the reckless nature of the defendant’s conduct.” The trial court also properly granted immunity to Black on the First Amendment claims as Black followed the orders of his superior in effectuating the removal. While an officer cannot blindly follow orders and always be immune, no evidence exists to inform Black he was violating Heaney’s First Amendment rights by following Robert’s orders at the time. “Black was not required to cross-examine and second-guess Roberts regarding his First Amendment motives before acting.” Black is entitled to qualified immunity on the First Amendment claim “because his actions as sergeant-at-arms were not objectively unreasonable…” Likewise, Black is entitled to qualified immunity for the Fourth Amendment seizure claims as he reasonably believed he had legal authority to keep the peace at meetings and in the building. Further, since Black never arrested Heaney, the false arrest claim was likewise properly dismissed. However, the 5th Circuit noted it lacks jurisdiction over the state law battery and negligence claims through the appeal mechanism used by Black.
If you would like to read this opinion click here. The Panel Includes Circuit Judge Clement, Circuit Judge Prado, and Circuit Judge Owen. Judge Prado delivered the opinion of the court. Attorney listed for Heaney is Craig Robert Watson. Attorney listed for the city defendants is Brett John.
