First Amendment WIN in federal court

esqappellate said:

Fabs. None of that is the test for immunity under Section 1983. The question is what clearly established law provides, and that does not turn on the subjective intent of the officer or whether he thought he was acting the scope of his duties. There are tons of clearly established law that demonstrating on a public sidewalk, peacefully, without obstructing, is protected by the first amendment. Tons of case law that you can't retaliate against someone for exercising first amendment rights. These guys are toast.

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Amen!

I am wishing the parties bringing the suit much success , it really needs to be a classic reaming done where the arresting parties walk funny and the people that called the shots are exposed .

esqappellate said:

There are tons of clearly established law that demonstrating on a public sidewalk, peacefully, without obstructing, is protected by the first amendment. Tons of case law that you can't retaliate against someone for exercising first amendment rights. These guys are toast.

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There's video and photographic evidence that nobody was obstructing the sidewalk when they were cited, so it should be an easy win?

Allen65 said:

There's video and photographic evidence that nobody was obstructing the sidewalk when they were cited, so it should be an easy win?

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No win is ever easy when you are fighting the state. But we have a strong case

esqappellate said:

Fabs. None of that is the test for immunity under Section 1983. The question is what clearly established law provides, and that does not turn on the subjective intent of the officer or whether he thought he was acting the scope of his duties. There are tons of clearly established law that demonstrating on a public sidewalk, peacefully, without obstructing, is protected by the first amendment. Tons of case law that you can't retaliate against someone for exercising first amendment rights. These guys are toast.

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I love it when knowledgeable attorneys weigh in.

esqappellate said:

No win is ever easy when you are fighting the state. But we have a strong case

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And is Frosh defending? If so, his troubles are mounting...

esqappellate said:

Fabs. None of that is the test for immunity under Section 1983. The question is what clearly established law provides, and that does not turn on the subjective intent of the officer or whether he thought he was acting the scope of his duties. There are tons of clearly established law that demonstrating on a public sidewalk, peacefully, without obstructing, is protected by the first amendment. Tons of case law that you can't retaliate against someone for exercising first amendment rights. These guys are toast.

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I hope you are right and that asking them to move back 5' is considered unreasonable and is considered a violation of their 1st Amendment Rights. For me, the question ends up being whether asking them to move 5' or so back while allowing them to continue demonstrating, was actually a violation of their 1st Amendment Right.

Just wondering if there is any specific case law stating that asking demonstrators to move 5' back is a violation of their 1st Amendment Right. Guessing this might be a case of first impression.

Also, good on the win on the Motion to Dismiss. It means the Complaint was competently drafted. Of course, even if the Motion to Dismiss had been granted in whole, and not just in part, you would have still had time to amend or refile. Even if you lost, you really would not have lost, and this "win" really isn't that much of a win. Most Motions to Dismiss are not won, and usually used to run up costs by the litigant with the deeper pockets, which is the State of Maryland in this case.

I would have to read more, which I do not have time for right now, but it looks like qualified immunity might well apply in a First Amendment retaliation case. Of course, you first need to prove that the order and subsequent arrest were done in retaliation for the members of PP exercising their First Amendment Right.

https://www.jacksonlewis.com/resour...-amendment-speech-rights-government-employees

"Qualified immunity under section 1983 is a powerful affirmative defense, protecting a state or local government official sued in an individual capacity from damages liability where the official can show that he or she acted with a reasonable belief in the constitutionality of the challenged conduct."

So, it might all come down to whether Pope thought ordering them to move off the sidewalk and onto Lawyer's Mall was reasonable versus whether he thought it was a violation of the PP members' First Amendment Right.

Who knows, you might find a smoking gun in this case during discovery. Maybe there is a written order from on high instructing Pope to do what he did. That would be incredible.

I really wish you all the best on this case. Now, if only everything was as straight forward on the 2nd Amendment stuff. Plus, if you win on the 1st Amendment case, the 4th Circuit might actually uphold that finding.

swinokur said:

I was just informing Fabs this is a Federal case not state

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Yeah, whether Pope thinks it was reasonable was a key matter hinted to throughout the Court's opinion on the Motion to Dismiss. There was a recent SCOTUS case regarding personal liability not being available in a 1983 lawsuit when the person performing the act believed it was reasonable.

I was wrong about the Maryland statute limiting the amount of damages and providing full immunity to Pope. However, Pope still enjoys qualified immunity if he believes that his actions were reasonable. You know, kind of like how reasonable it is for an LEO to shoot a person to death because the LEO feared for his life.

Did Pope think the order he gave was reasonable, or did he think he was violating their First Amendment Right? Don't think I would be crying if I was defending this lawsuit because it is really going to come down to the facts. Of course, the other side already knows the vast majority of the facts.

fred2207 said:

A reasonable LEO should of known his boundaries when it comes to making an arrest for picketing on a public sidewalk. It's not like Sgt Pope was a rooky cop and uneducated in the protocols, long established for the Capital Maul sidewalk protest events. While I could be all wrong in my opinion, just following orders is not a good reason, (just my opinion)...

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The arrest was not made for picketing on a public sidewalk. The arrest was made for not following a "lawful" order to move back from the sidewalk and continue on with the picketing from Lawyer's Mall. At the time, Rack made the argument that Pope was ordering Rack to break the law because a permit is needed to demonstrate on Lawyer's Mall.

The arrest came because Rack did not follow what Pope believed was a lawful order. The arrest was not because of them picketing. If the arrest was solely because they were picketing, then ever member of PP would have been arrested that night.

fabsroman said:

Yeah, whether Pope thinks it was reasonable was a key matter hinted to throughout the Court's opinion on the Motion to Dismiss. There was a recent SCOTUS case regarding personal liability not being available in a 1983 lawsuit when the person performing the act believed it was reasonable.

I was wrong about the Maryland statute limiting the amount of damages and providing full immunity to Pope. However, Pope still enjoys qualified immunity if he believes that his actions were reasonable. You know, kind of like how reasonable it is for an LEO to shoot a person to death because the LEO feared for his life.

Did Pope think the order he gave was reasonable, or did he think he was violating their First Amendment Right? Don't think I would be crying if I was defending this lawsuit because it is really going to come down to the facts. Of course, the other side already knows the vast majority of the facts.

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It can’t be about what HE thought was reasonable. It has to be about what is truly reasonable.

Mark75H said:

Not just PP. In the complaint they specifically mention Pope being present in some of the early "OK" events.

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Yep, think the "why" question in deposition would be the most important on this matter. Why was it different this night versus other nights? Who knows, maybe the area was busier that night, maybe people had complained about PP blocking the way on the sidewalk, etc. Think we were instructed during the rally about not veering from a certain path. Time will tell how discovery plays out and who ends up winning and losing.

BeoBill said:

And is Frosh defending? If so, his troubles are mounting...

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I already provided you with a copy of the actual audit report from the Office of Legislative Audits. Put it right in the original thread. The AG's office merely failed to use the proper procurement process for some goods and services, and the improper procurement process was not used on the totality of $2.1 million in goods and services. IIRC, it was somewhere south of $100,000.

fabsroman said:

If the arrest was solely because they were picketing, then ever member of PP would have been arrested that night.

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Unless whoever told him to do it didn’t like the picketing generally, but decided Rack and his brother were just the two to make examples of.

teratos said:

It can’t be about what HE thought was reasonable. It has to be about what is truly reasonable.

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That is correct. It is whether a reasonable person in Pope's position would have known that his conduct would violate the Hulbert's rights. Maybe Pope was hearing voices in his head and acting unreasonably in asking the PP members to step back 5' or so while allowing them to continue to picket.

IIRC Events on Lawyers Mall requires a permit which the PP did not have and other demonstrations happened that evening in the same general public sidewalk area and they were not asked to move.

Blacksmith101 said:

IIRC Events on Lawyers Mall requires a permit which the PP did not have and other demonstrations happened that evening in the same general public sidewalk area and they were not asked to move.

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Yes, and PP mentioned that.

fabsroman said:

I already provided you with a copy of the actual audit report from the Office of Legislative Audits. Put it right in the original thread. The AG's office merely failed to use the proper procurement process for some goods and services, and the improper procurement process was not used on the totality of $2.1 million in goods and services. IIRC, it was somewhere south of $100,000.

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If you did I either didn't see it or didn't note it. But I won't clutter this thread up with that.

fabsroman said:

That is correct. It is whether a reasonable person in Pope's position would have known that his conduct would violate the Hulbert's rights. Maybe Pope was hearing voices in his head and acting unreasonably in asking the PP members to step back 5' or so while allowing them to continue to picket.

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Picketing on lawyers mall with out a permit is illeagal. The PP knows this. Pope new this. So all of a sudden, the policy has been 100% reversed, with no notice and no source outside of Pope's word? On top of that, you cannot tell some one to leave or move a from a PUBLIC sidewalk with out them blocking it, and then arrest them when they don't jump. As esqappellate has stated this is well defined in case law. There's alot of people of poeple who think it's reasonable to give up semi autos or be put on a list if you own one.

fabsroman said:

That is correct. It is whether a reasonable person in Pope's position would have known that his conduct would violate the Hulbert's rights. Maybe Pope was hearing voices in his head and acting unreasonably in asking the PP members to step back 5' or so while allowing them to continue to picket.

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Wow. Well it appears someone is hearing voices in his head.

fabsroman said:

The arrest was not made for picketing on a public sidewalk. The arrest was made for not following a "lawful" order to move back from the sidewalk and continue on with the picketing from Lawyer's Mall. At the time, Rack made the argument that Pope was ordering Rack to break the law because a permit is needed to demonstrate on Lawyer's Mall.

The arrest came because Rack did not follow what Pope believed was a lawful order. The arrest was not because of them picketing. If the arrest was solely because they were picketing, then ever member of PP would have been arrested that night.

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If there is a constitutional right to peacefully picket on the sidewalk (and there is), then Pope's order to move off the sidewalk was unlawful. Pope justified it by reference to a new "policy" The judge is saying in the order, effectively "What policy?" saying "This case law would seem to indicate that the Plaintiffs have alleged sufficient facts in the Complaint to make out a violation of a constitutional right." The judge then stated that "the government is permitted to burden free expression in certain circumstances, particularly where the government policy or regulation is content-neutral." So we will have a happy time in discovery as to what the "policy" is and whether it is "content neutral." I, for one, do not think for a minute that there was *any* actual policy (much less written policy of which notice was given) -- it was just a sham that Pope and Wilson made up to hassle these guys. Bear in mind that this "policy" is not only brand new, but it is "policy" that has never been enforced against anyone else (before that night and since that night). But we shall see in discovery when we place these guys under oath and get all the documents. If there is a "policy," then they should have *something* that sets that policy out. If it was made up that night just to hassle these guys, then they have no defense and no qualified immunity. Toast.