Anello v. Anderson
518 F. App'x 24
2d Cir.2013Background
- Anello filed suit against Niagara Falls City Council members Anderson, Fruscione, and Robins for First Amendment violations.
- District court denied summary judgment on the council members' claim of qualified immunity.
- Appellants sought interlocutory review of that denial in the Second Circuit.
- The dispute centers on whether Anello was silenced in a limited public forum due to his viewpoint.
- The panel concludes the appeal is not a final decision and lacks jurisdiction to review the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the denial of qualified immunity appealable? | Anello contends there is a genuine dispute about suppression based on viewpoint. | Anderson, Fruscione, and Robins argue no appellate jurisdiction over a non-final denial and/or entitlement to immunity under plaintiff's facts. | No interlocutory appellate jurisdiction; appeal dismissed for lack of jurisdiction. |
| Was the speech at issue restricted in a manner consistent with First Amendment law for a limited public forum? | Anello was silenced due to his opinion or perspective. | Restrictions were permissible or non-viewpoint based depending on permissible reasons. | Question of fact remains; the panel cannot resolve on interlocutory review. |
Key Cases Cited
- Ortiz v. Jordan, 131 S. Ct. 884 (2010) (denial of summary judgment generally not appealable; limited exception for qualified immunity.)
- Mitchell v. Forsyth, 472 U.S. 511 (1985) (qualified immunity as a circuit-through to interlocutory appeal when appropriate.)
- Tierney v. Davidson, 133 F.3d 189 (2d Cir. 1998) (discusses interlocutory review when party contends entitled to immunity under plaintiff’s facts.)
- Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688 (2d Cir. 1991) (limited public forum; government may exclude certain speech but not on viewpoint.)
- Hotel Emps. & Rest. Emps. Union Local 100 v. City of N.Y. Dep’t of Parks & Rec, 311 F.3d 534 (2d Cir. 2002) (speech restrictions in limited public forums must be viewpoint neutral and reasonable.)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (government must refrain from viewpoint-based discrimination in speech.)