*1 186 crime charged in a constitutional violation.” was minor and nonviolent
will result
Walker,
(citing Lockyer
proportionality
v.
principle
F.3d
79
violated
473
Andrade,
63, 72, 77,
Amendment);
123
Eighth
538 U.S.
S.Ct.
Weems v. Unit
(2003)).
States,
1166, 155
349, 358, 382,
144
L.Ed.2d
217
ed
U.S.
30 S.Ct.
(1910)
544,
(finding
2005) omitted). (quotation marks For that reason, Supreme Court has made it The District judgment Court’s of convic- “ that, capital clear the context of ‘[o]utside tion and sentence will be affirmed. punishment, challenges successful proportionality particular sentences [will ” Helm, exceedingly rare.’ Solem v. 463 be] 277, 289-90, 3001,
U.S. 103 S.Ct. 77 (1983) (quoting
L.Ed.2d 637 Rummel v.
Estelle, 1133, U.S. S.Ct. (1980));
parole repeat for a offender prior whose relatively
crimes were minor and whose *5 M. (argued), Doyles-
Lawrence Otter town, PA, appellant. for Marnen, James T. Marnen (argued), Mioduszewski, Bordonaro, Wagner & Sin- not, Erie, PA, appellees. for SLOVITER, GREENAWAY, Before: JR., GREENBERG, and Judges. Circuit OPINION OF THE COURT GREENBERG, Judge. Circuit
I. INTRODUCTION This matter comes on before this Court § in this U.S.C. 1983 First Amendment plaintiff action on Daniel T. ap- Galena’s peal from the District Court’s orders en- tered on March vacating jury’s a favor, verdict in his granting defendant judgment Fiore Leone as a matter of law pursuant to Federal Rule of Civil Proce- 50(b), denying dure and Galena’s motions for an attorney’s award of fees and costs. complaint, his amended alleged Leone, at a that he time was the chairperson County, Pennsyl- of the Erie 20, 2007, he attend- early 2006 and March Council, County’s legislative vania, a month. meetings its at least once ed rights First Amendment body, violated govern- petition to free an Administra- adopted The Council has meet- him from a Council by ejecting ment the order of provides tive Code object to attempted to ing when meeting to be typical at a business an or- adopting procedure the Council’s (1) (2) Pledge Allegiance; as follows: trial, the two-day At the end of dinance. (3) Invocation; Roll Optional Prayer or favor, a verdict Galena’s (5) returned (4) Public; Call; Hearing Ap- $5,000 compensatory him and awarded of Previous Meet- proval of the Minutes intended it found that Leone damages, as (6) Officials, Reports County Com- ings; speech by reason (7) Galena’s suppress mittees, Special Advisory Groups; or when he had identity viewpoint (8) Business; Business; New Unfinished from the On ejected (9) Adjournment.1 per- however, motion, post-trial Leone’s to comment on mits members verdict, granted vacated the any subject they wish to address law, it a matter of judgment as of the Public was insufficient to that the evidence meeting, allowing speaker pro- held who has The Court liability verdict. support vided advance written notice of desire attorney’s speaker Galena’s motions who has speak also denied five minutes and agree as we costs. Inasmuch such advance notice three provided fees and that the evidence applies District Court minutes. The Council Code with the jury’s find- a member of the support preclude was insufficient *6 speaking during violated the First time Council that Leone’s actions ing during Hearing than the of we will af- other and section Amendment portion meeting.2 of the The the Public firm orders of March the presiding officer provides that the
Code AND PROCEDURAL II. FACTUAL public the from the may bar a member of HISTORY boister- meeting if the individual becomes offensive, threaten- insulting, or makes ous Galena, of Erie Coun- In 2006 a resident slanderous, insolent, or obscene re- ing, attending meetings of the Erie ty, began marks. of his interest County Council because up adoption how of his desire to observe The Council takes government and during tax the “New Business” spending public dol- ordinances the Council was with a meetings in accordance meetings every portions two of lars. The Council held In this in the Code. procedure that between formal estimates weeks Leone, meetings, participated in who repetitions in the but appear to be several 1. There Code, appendix. drafting by There are two time of the pagination of the and who pages 127-130 and three years, of labeled sections for 32 trial had served on the Council We have re- labeled as 131-136. sections imposing such a re- interprets the Code as appendix to avoid confusion. numbered Though not contend Galena does striction. pages 127-136 section of labeled The second provides for comments that the Code the third section 137-146 and has become Public, Hearing during the of the other than 147-152. The labeled 131-136 has become Code, that, regardless of the he contends appendix pages in the is 178. of total number may objections make of the members Act, we discuss a statute under the Sunshine does not state that Administrative Code below, portion at times other than may speak only during members of the meetings. portion Council Hearing the Public regard, provides proposed the Code Renee Vendetti accused the Council of and, in writing, wasting trips ordinances be introduced money Washington on ordinances, except emergency Harrisburg, which Pennsylvania, D.C. and sooner, may may adopted be adopted smoking stated that ban improper was a meeting held at least one week after the under Rules of Roberts Order and that they meeting at which were introduced. those prepa- rules must be followed in the (3) requires minutes; The Code that all ordinances re- ration of Council Kenneth taxes, lated to levying being before Przepierski Francis Simon stated that the adopted, read at are to be least once in smoking ban a “smoke screen” so that each of separate meetings two “fly the Council can through agendas Council. bumping readings to first second read- ings,” criticized the Council’s tax exonera- spoken during has the Hearing tion of properties, certain and stated that meetings Public trimmed, 141; budget should be id. at times, approximately 14 or 15 primarily (4) and Maria stated Foster that the Coun- County’s addressing expenditure Erie cil was breaking ways the law various tax revenues. Galena testified that when and that it allowed Office of Children speaking begin by his custom has been to and Youth to violate the law though even stating his name and address to the Coun- the agency is under Council’s and the cil, and then turning the audience and County jurisdiction. Erie executive’s4 greeting by stating, them evening “[G]ood Furthermore, Foster accused Council taxpayers.” Next, App. at 26. his custom taking pleasure trips members of to Wash- and, is to face the Council “more often ington receiving D.C. and cash and extra not, than pan[s] ... kind of [he] the seven perks. All persons spoke four without in- County members of Council with arm [his] terruption or incident. other ... say[s] and ” ‘good evening tax spend- Leone, ers.’ Id. Galena testified that Following Public, hearing greeting, the latter often would approved previ- minutes of the “grimace and scowl.” Id. Galena also tes- ous reports and received *7 tified that while he was speaking, Leone various and Council committees members. would “more grin, often than not ... and The minutes of the recite that laugh” comments, almost at his though he Leone then the public addressed com- way did not react that when other mem- regarding smoking ments ban and also bers of the spoke. Id. at 27. made following statement: This litigation Vendetti, arose events at Mr. Leone then addressed Ms. March 2007 Council During Ms. Przepierski. Foster and Mr. Mr. of the Public hearing of that Leone keeps that Council meeting four members of the ad- breaks the He law. cautioned these in- (1) dressed the Council: Gil Rocco criti- dividuals to be careful when they tell cized the Council for its decision making they Council want to be taken seriously; process breaking and for by pass- the law because Council should be taken serious- (2) ing a ban ly in smoking county;3 as well. It seems no matter smoking 3. We have applies only examined the places ban ordi- but rather in certain with- nance, County County. in the the Erie Smokefree Air Act of Ordinance Number and note County apparently Executive is the that it county-wide smoking is not a ban on county administrator. Leone: You’re out of order. Mr. what, pleased. cannot be people some told him— story his father recalled He ... are in violation Mr. Galena: You bills, people dollar out ten you pass if order, you’re out of if Mr. Leone: I said twenties, they’re not complain will you taken out. you keep up it I’ll have probably father was he feels his in object. I You are viola- Mr. Galena: the situation seems to be right. This Pennsylvania Act. tion of Sunshine does, it here; what Council no matter I him taken Deputy, want Mr. Leone: People think Council enough. just isn’t out of here. available 24 hours should be Members County’s And Erie Admin- Mr. Galena: can. everything they possibly day, doing Code. istrative time puts more Although probably him charged. And I want Mr. Leone: members, Mr. it is because than other reminded the the time. He Leone has in violation of the Mr. You are Galena: job. part-time this is a audience Pennsylvania Sunshine Act. legislators, Members are Council charged. I want him Do Mr. Leone: some of the getting tired of Council hear, harassment. You’re not you that’s again He cau- being brought up. issues get away ... going to because, careful, if to be people tioned assembly, I’m I part Mr. Galena: the matter will take necessary, Council object your proceedings. to court. charges against file Mr. Leone: We’ll at 144-45. App. you. Next, several or- the Council considered to do so. Mr. Galena: You’re welcome consideration, a During dinances. Id. at 118. a motion to move member made deputy A sheriffs then escorted from the first ordinance newly introduced building. and the from the Council point At that reading. reading to a second Leone’s comments at the Notwithstanding following had the ex- and Leone anyone Leone nor else meeting, neither change: Leone, how- charges against Galena. filed item, reading Leone: Next second Mr. that, ever, stating a letter sent Galena entirety, please. its Ordinance Council, it was Leone’s chairperson reading of Ordi- Mr. Smith: Second to maintain decorum and responsibility 28, 2007, ‘Fifth 2007 Pub- nance Number meetings, preserve order Supplemental Budget lic Health Fund meetings disrupted if Galena Health Pre- for Public Appropriation *8 could be banned from Council future he (Mr. reads or- paredness Grant.’ Smith meetings. body) dinance 30, 2007, initiated this April On Galena Mrs. Loll: So moved. amended by filing complaint, later case Mr. Mitchell: Second. 2008, and all of against in Leone March Loll, by Mrs. sec- Mr. Leone: Moved Council, princi- other members of the the by onded Mr. Mitchell. Comments? 20, of March account of the events pally on Chairman, I have an Mr. Galena: Mr. complaint Galena In his amended objection ... that Leone violated his First charged (uses gavel) Leone:
Mr. speak to rights Amendment Chairman, petition government to the meeting I an Mr. have Mr. Galena: Galena also grievances. redress of his for objection 194 emergency. to an attempting
accused Leone of intimidate concerned Galena’s re- sending letter to by warning frequently during him the which search revealed Galena the Finally, alleged we have referred. 2006 and 2007 Council had com- plied prescribed procedure at a procedure February that the with the formal Council’s 19, year one as it meeting, adoption almost the ordinances circum- Council 20, meeting, by waiving the procedure after the March violated vented first Pennsyl- reading finally the Administrative Code and the of some ordinances and vot- Act, ing meeting they vania 65 Pa. Cons.Stat. Ann. on them at the at which Sunshine (West 2000). seq. 701 et Galena, § predi- were introduced. According first three of his the proce- cated the counts amended Council followed this truncated complaint on federal law and the last count dure 64 times and either or 15 on January state law. times between and March in 2007. practice to be in considered 12, 2008, Court, On June the District Pennsylvania violation of the Sunshine Act motion, acting on Galena’s all dismissed depriving because the Council was the preju- the from the with defendants case right its review the ordi- except August dice Leone. On thus, expenditures county nances—and against Galena abandoned his claims tax dollars—before the voted on except for those under the First them. Amendment, and, accordingly, Galena’s February regarding count the Galena stated on March meeting longer no the could afford basis speak during chose not to Hearing for a judgment verdict his favor.5 and, portion meeting Public of the Thus, allegations case were nar- instead, attempted objec- later to voice his considerably rowed the pleading tion pre- to the Council’s violation stage to the trial stage respect both with procedures during scribed New Busi- parties and issues. portion ness because he parties tried the to a predict prior case on could not to that time wheth- in August First Amendment issues er the during the New Business describing portion Galena testified would move an March 20 confrontation with Leone and reading. ordinance from first to second explaining objection that, the reasons for his on Galena nevertheless testified based that day. interpreted prior Adminis- history respect Council’s trative to require ordinances, Code that Council mem- adoption “there was a proposed bers good introduce ordinances to they chance that move would first public by placing them readings on a Council meet- readings” to second at the March ing agenda and making App. them available 72 20 34. Galena acknowl- hours their reading. edged before first Further- previously when he had ad- more, Galena testified that the Council dressed the Council could not vote on ordinance until at meetings, Public of Council it days least elapsed seven him permitted speak after ordi- had without inci- *9 nance’s reading, testimony, first dent. During unless ordinance Galena’s his at- We, however, Though any prece- edy 5. we are not aware for its violation. do not officially reported Pennsylvania dential state point make a determination on this inasmuch point, court decision on the review our of the as Galena not made a in this has claim case Sunshine Act leads us to believe that the Act damages for for a Act Sunshine violation. probably provide damages does not a for rem- deputy pres- The who recording and audio sheriffs had been torney played video meeting during ent at the testified that jury. March incident for the of the incident was calm Galena while Leone’s had on testified that he served Leone “pretty demeanor at was animated.” Id. and had its years for been the Council Giles, Joseph 56. a Council member who during approximately eight chairperson 20, present was on March testified that year-long tenures. He also testi- separate objections insulting, Galena’s were not during years on the fied that his 32 Coun- insolent, slanderous, threatening, or ob- cil, only time had had that he someone Giles, however, scene. also that testified when removed from he had when he chairperson had been of the on March Galena removed Council, if a member of the audience personally stated that he was not Leone spoken at a time other than acquainted but knew him Galena Public of the meet- at through Galena’s attendance Council ing he have called person would out of meetings. Leone also testified that he order. testified Giles also that Galena was may spoken have with Galena one occa- “boisterous,” being and that if a member prior to March about a mat- sion “go through refused on which ter before normal in process order to record com- agreement. were in Leone further Galena ments,” he would have acted Leone did. personal that he no animosi- testified bore Id. at 62-63. anyone person’s of that ty toward because case, At the close Galena’s Leone opinions, but he believed the Code complaint, moved to dismiss the amended speak- members of the restricted arguing that did provide evi- ing only during part of the Council suppress dence that Leone intended to meetings designated for comment. Galena’s based on view- speech Galena’s that, stated a few times” on “quite point. The District Court denied the mo- occasions, he had found prior Galena’s tion but that it might stated revisit the mark,” although comments be “on the As issue later the case. we have indi- were times there also “a few that he cated, finding returned verdict wasn’t.” Id. 73-74. that Leone violated Galena’s First Amend- recognize Leone testified that he did not rights him by having ment removed objec- understand the basis Galena’s him awarding the Council tion at the that Galena it on time made $5,000 compensatory damages. The March Leone stated when he however, jury, punitive did award dam- ruled Galena out of order he did not know ages. say what Galena would and he would have anyone interrupted removed who parties followed the verdict meeting regardless the content post-trial again of that with their motions. Leone that, law, person’s speech. judgment Leone also testified moved for as matter of although the solicitor but this District granted had not time the motion, obligations finding him about his did not briefed under the Act, legally the solicitor told him that adduce sufficient evidence that Sunshine compliance suppressed the Council was in with the Leone had be Act. Leone that he was not cause of an animus him or a stated aware either toward any provision disagreement regarding proposed Sunshine Act that allows mes any person object sage. attorney’s time to a filed motions but, costs, light the Act. fees and of the Court perceived violation of *10 196
having judg- reasonably support Leone’s motion for will granted only one conclu- law, Int’l, Wilander, a matter of it denied sion.” ment as McDermott Inc. v. 807, timely 818, as moot.6 filed no- U.S. 111 motions 498 S.Ct. 112 (1991). appeal from the orders. 866 tices Court’s L.Ed.2d IV. DISCUSSION AND III. JURISDICTION STANDARD OF A. Issues on Appeal REVIEW two overarching Galena raises issues subject The District Court matter First, on appeal. argues that he jurisdiction over Galena’s First Amend- presented legally sufficient evidence to rights ment civil claims under 28 U.S.C. support jury’s finding underlying its (4) 1343(a)(3) 1331, §§ and 42 U.S.C. verdict Leone acted with intent to § jurisdiction 1983 and had over Galena’s suppress based on view- § claim 28 state law under U.S.C. 1367. point identity ejected when Leone jurisdiction on appeal We have from Second, him from the Council meeting. the orders of the District Court under 28 Galena contends that the Sunshine Act’s § 1291. U.S.C. objection provision allowed him to speak any time the Council We plenary exercise review of meeting, and “direct implications has grant judgment District Court’s the First rights Amendment of a citizen apply matter law and stan same speaker government at a meeting.” Ap- dard as the District Court: the motion pellant’s objects br. at 22. Galena also granted only if, viewing “should the District ruling Court’s that Galena light evidence most favorable waived his prior Sunshine Act claims nonmoving party, question there is no Galena, trial. making Id. these material fact for verdict arguments, challenges the Administrative other than the one directed would be erro insofar public’s Code as it restricts the governing neous under the law.” Beck v. speak time to the Hearing of the Pub- (3d City Pittsburgh, F.3d lic of a Specifically, Ga- (internal Cir.1996) quotation and ci marks lena believes that the Code not al- does omitted); Lube, tation see also Lightning an adequate low alternative method of (3d Inc. v. Corp., Witco 4 F.3d speaker communication who wishes Cir.1993) (stating may court grant object procedures to the Council’s at a judgment motion for as a matter of law time other than of the Public if, “only viewing light the evidence in the portion of meetings. most giv favorable to the nonmovant and ing it the advantage every fair and B. The First Amendment and Section inference, reasonable there is insufficient a jury reasonably evidence which liability”). could find “[A] directed verdict For Galena to succeed this action he is mandated where the facts satisfy and the law requirement had to the section 1983 6. Unquestionably, prevailing party); inasmuch as the District Luria & Co. v. Bros. Allen, granted judgment (3d Cir.1982) as a matter of 672 F.2d 357-58 law, (losing Galena's were party motions moot because the in a section 1983 case is not losing party fees). in a attorney’s section 1983 action is not light entitled to of our case, attorney’s entitled to disposition fees and See 42 costs. Galena’s motions re (providing § attorney’s U.S.C. fees to main moot.
197
acting in
that
the defendant
official must not be
violation of
plaintiff
that a
show
and,
City
amendment.
law,
See Monteiro v.
of state
while
acted under color
of
(3d Cir.2006).
Elizabeth,
397,
436 F.3d
404
acting,
plaintiff
of
deprived
so
Therefore, we
the question
address
of
of
or laws
rights under the Constitution
Leone,
excluding
in
whether
Galena from
1983;
§
42
the United States.
U.S.C.
meeting,
the Council
violated the First
42,
Atkins,
48,
S.Ct.
v.
487 U.S.
108
West
Amendment.
(1988).
2254-55,
2250,
Of
Traditional
forums include
in a limited
forum. There we held
streets,
public
and other
ar
forum
of
public
parks,
citizens’
assembly
traditionally
Township
Supervisors
to
and
Board of
eas
devoted
Indiana
meeting
Ark. Educ.
limited
forum
public
debate.
See
Television
was a
be
Forbes,
666, 677,
“public
may
v.
523 U.S.
118 cause
confine
Comm’n
bodies
their
(1998).
1633, 1641,
meetings
subject
Moreover,
may
though Leone’s actions
procedures
Council’s
an
adopting
ordi-
Act,
have
the Sunshine
violated
such
meeting pre-
nance as that
per
se
infringe
violation
on Gale-
would
ceded the New Business portion of the
rights
na’s First Amendment
because a meeting when the Council considers the
speech rights
free
statute can create
under
Therefore,
adoption of ordinances.
beyond
state law
those that
the First
public par-
contends that the
restriction
recognizes.14
Amendment
ticipation
provide
did not
him with an ade-
quate alternative means of communicating
Accordingly,
questions
we address
message concerning
pro-
the Council’s
appeal,
taking
on the merits on this
when
cedure in adopting the ordinance.
practices
into account well-established
con-
cerning
procedures
for advancing and
responds,
District
contentions, are
Gale-
preserving
whether
held, that
argu
Galena waived this
*16
viewpoint
identity
na’s
or
motivated Leone
ment
argu
as well as his Sunshine Act
when he had Galena removed from the
ments,
question
inasmuch as the
of wheth
whether, in
meeting or
his role as chair-
a regulation
er
open
leaves
alternative
Council,
person
enforcing
of
he was
a
means
question
of communication
ais
of
time, manner,
place
reasonable
re-
that,
objection
fact
Galena,
without
by
fact,
striction in a limited
forum.
In
presented
Court never
to
jury
for its
jury
the Court instructed the
to decide
argues
consideration. Leone
further
these issues.
issue,
even if Galena had not waived the
right
objection during
Galena’s
voice his
Time, Place,
Validity
E.
of
and Manner
a subsequent
meeting provided
Restriction
him with
adequate
an
alternative means to
recognition Our
the limited role
message.
communicate his
on
appeal
Sunshine Act
this
takes us
our
inquiry
Clearly,
next
which focuses on Gale
the District
ruling
Court’s
na’s argument
under
First Amendment was
on
correct
this waiver issue. The
earlier,
general
13. We are aware that the
rule that a
15. As we stated
there are two other
appeals
court of
not
does
consider an issue
determining
considerations in
re-
whether a
may
that was not
in the
raised
district court
(1)
striction is
re-
reasonable:
whether the
justice
be relaxed if "the
interest or
so
neutral,
(2)
striction is content
and whether it
warrants,” Appalachian States Low-Level Ra
narrowly
important
tailored
serve an
Pena,
dioactive Waste Comm’n v.
126 F.3d
Ward,
governmental interest. See
U.S.
(3d Cir.1997),
but we see no reason
791-803,
will foreclose
were
inadequate
he
landscape
particu-
may
inasmuch as
believe
expression across the
(internal
objection
at
that an
made
the time
community
setting.”
quota-
lar
omitted)).
considering
Council is
proposed
ordi
tion marks and citations
object
nance is the best
time to
to an
that he
have
argues
would
need-
irregularity in the
procedure
Council’s
“crystal
predict during
ball”
ed
to
considering
adoption
that ordinance
Hearing
portion
of the Public
of March
objection
might
lead
Council to
20
what actions
Council would
its
change
procedure
respect
to that
following
portion
take
of the meeting.
Though
acknowledge
ordinance.
we
Thus,
at
Appellant’s br.
he contends
unreasonable,
such a view would not be
expected
object
could
be
guarantee
First Amendment does not
something
not know
that he did
would
speaker the most
effective means
com
meeting,
happen. At the March
howev-
munication of the his message.
v.
Heffron
er,
another member
chal-
Consciousness,
Soc’y
Int'l
Krishna
lenged
procedure moving
the Council’s
Inc.,
U.S.
S.Ct.
reading
ordinances from
first
(1981)
(“[T]he
Act violation. attempt March 20 in an meeting, of the Overall, beyond it is that Leone doubt that demonstrate Leone harbored animus speech because Leone restricted message, points toward his Galena enforcing Administrative Code during Leone’s reactions to comments and not because Galena’s reason Hearing of the portions pre- Public Indeed, essentially ac- objecting. meetings. Specifically, vious Council Gale- point in his brief in which knowledges prior that on na testified occasions when forth that he “testified that he did he sets Council, scowled, spoke to the ‘my objection’ express the contents of grimaced, grinned, laugh[ed]” and “almost recognize Mr. Leone because refused but Leone did not reactions have similar Appellant’s at objection.” br. persons spoke. App. when other at 26-27. point also out even if there had We that argues could have finding support been evidence could improper attributed an motive to Leone Leone knew for Galena’s the basis annoyance because of his visible when Ga- him out of objection when Leone ruled “tax lena called Council members order, our result would be the same. The Appellant’s Ga- spenders.” br. 27-28. limit all applied Administrative Code is argues lena also Leone channeled his Hearing comments at him frustrations comments regardless of meeting the Public suppressed because Leone proposed whether the comment relates appreciate authority having did not “his then directly to a matter that the Council questioned.” According Id. 19-20. Thus, addressing. the restriction on Galena, Leone’s on March 20 to comments entirely making comments is divorced spoken the members of the who had the contents of the comments and Public, telling chairperson’s therefore the determination to “be careful” that the Council them does not take to enforce restriction being is “tired of some these issues viewpoint speaker into account the that the that Leone was brought up,” demonstrate Accordingly, to set forth. we intends annoyed by public comments at Council appeal reach the same on this would result meetings. Id. at 12. further ar- even if Galena initiated his comments by stating gues report on March 20 that “The Sunshine that the sheriffs of the March course, by deputy objection. the time that stated the basis for his Of meeting, took Galena out he had sheriff *21 meeting eifically, and the video of the confronta- several individuals asserted that him law, tion between and Leone show that breaking Council was as Gale- in an speaking Leone was elevated voice na did when he mentioned Sunshine calm during objected while Galena remained the Act when he on March 20. In- deed, jury, incident. maintains that the already as we emphasized, have one observing public objected from the demeanors of both member any of the without videotape, Leone and Galena on reason- adverse repercussions to the pro- Council’s ably could have concluded that Galena’s of moving cedure ordinances from the first identity motivated Leone to have him reading re- to the reading, second the same meeting. moved from the at 21. Id. issue that Galena sought to raise on March 20, 2007. Court, Like the District we view Leone’s light
behavior toward
Despite
history
of other
of Galena and other
presented
evidence
trial
that was
public speaking
members
out and
unimpeached.
uncontroverted
Council,
See
criticizing the
there is no evidence
Reeves,
209
longer
no
during portions
comments
to Galena’s
tions
and, on several
past
open
public
comments
portions
the Public
Hearing of
occasions,
to the
him for
certainly can lead
the Board removed
dis-
meetings
that,
some
at least on
inference
Id.
268-69.
rupting
reasonable
occasions,
with Galena’s
disagreed
Leone
rights
alleging
filed a civil
action
Kindt
However,
Leone ruled
viewpoints.
conspired
Board
to violate his
that
ejected
him
from
and had
out of order
right
speech by
to free
First Amendment
spoke at
only when Galena
meetings
public
meetings
him
Board
ejecting
the Public
time other than
speakers
by discriminating
and
between
the 14
meeting. On
of a Council
speakers
and
supported their views
who
voiced
when Galena
15 other occasions
or
The District
opposed
who
them.
Court
Leone,
dis-
sometimes
while
opinion,
summary judgment
granted the Board
from de-
prevent
did not
agreeing,
and,
following
appeal,
Kindt’s
Court
Likewise, Leone’s
message.
livering his
affirmed.
Appeals
public in
the members of the
comments to
legal princi-
Inasmuch as Kindt involves
comments show
to their
response
timing
of com-
ples
respect
with
viewpoints,
disagreed with their
while he
here,
implicated
to those
ments similar
speech
their
attempt
not
to silence
he did
though
egre-
Kindt’s
was more
conduct
com-
time set aside
during the
Galena’s,
quote
will
gious than
we
ments.24
length:
Appeal’s reasoning
Court of
involves
extent
this case
To the
argues that because Item 13
[Kindt]
timing of
predicated on the
restrictions
meeting,
matters occur at the end of
comments,
in
is remark-
the issue
this case
he has
‘deprived
speech’
he is
because
that the
to the issue
ably similar
by
a smaller audience
the time
the Ninth Circuit considered
Appeals for
speak
allowed to
and because he is
Rent Control
in Kindt v. Santa Monica
more than three minutes to re-
allowed
Cir.1995).
(9th
Bd.,
plain-
F.3d
longer presentations by speak-
spond
Kindt,
Kindt,
frequent
Albert
was a
tiff
the Board under
ers who addressed
Moni-
meetings
of the Santa
participant
4. Those
do not establish
Item
facts
Id. at 267. At
ca Rent Control Board.
rights
that Kindt’s First Amendment
regulations provided
one time Board
regulations
The Board
were violated.
public who wished to ad-
members of the
public commentary to three
restricting
or
slips
paper,
Board fill out
dress the
item at the end of each
per
minutes
“chits,”
agenda
item
corresponding
time,
the kind of reasonable
meeting are
to address.
Id. But because
they sought
pre-
place, and manner restrictions
disrup-
comments had become
legitimate
interest
serve
board’s
tive,
system in
Board switched to a
efficient, orderly meet-
conducting
only
public comments
dur-
which it allowed
ings....
regulation
No invidious
agenda,
item of the
Item 13.
ing the last
con-
however,
implicated
Kindt,
Kindt’s
at 268.
continued
Id.
e.g.,
the fact that
meetings
tent was not
loudly disrupt
Board
speak
factor —
regular
ently this back and forth is a
scenario
only
minutes in the record
24. The
meeting,
meetings:
than those of the March 20
members of the
other
at Council
certain
meeting,
January
show
those from the
disappointment
public express
with the Coun-
making
those he
Leone
comments similar to
expresses
disagreement
cil
expressing disappointment
made on March
their
comments.
Appar-
with the tenor of
comments.
on the Cambodian
disrupted meeting,
the Board’s views
and the
Board
regime might might
different
things
taken a break to let
down.
settle
*23
point at
Kindt’s was not the
all.
from
that
appears
It
as soon as the Board
he
to
in
speak
returned,
Whether wanted
Kindt’s cohort was seen to
favor of
them,
views or
his chit
against
those
gesture
make an obscene
toward
IS,
had to be
under Item
which
heard
member,
Board
which
to
threatened
public
the time
com-
was
set aside
disruption
again.
start
all over
for
ment on all
matters
special
but such
permissible
Those were
within
removals
(Item 7).
In
hearings
other
public
regulation
governing
Board’s
words, if
type
tangential
of
resolu-
decorum at
meetings.
rules of
Board
in
to
tion
issue here was meant
be cov-
(citations omitted) (first
Id. at 271-272
two
by Rule
the vice is not that
ered
emphases
emphasis
orig-
added and last
public
the Board failed to hear
comment
inal).25
during
part
agenda given
of the
over
significant
It is
that
of
the minutes
‘announcements,
commendations,
to
January
of
when Galena
pins,
award of service
introduction of
during
spoke
nonpublic
peri-
comment
special guests,’ Item
the ‘salute
or
od,
Leone merely
show that
him out
called
flag,’
Item 1.
The vice
that the
of
So far
order.
as minutes in the record
passed
Board
it
resolutions
heard
before
reveal, member
public
no
than
other
general public.
That is not a
from
spoke
Galena ever
out of the order for
violation
the First Amendment.
public comments set forth in the Adminis-
Again,
kept
Kindt was not
from
trative
But
Code.26
on the
occasion
speaking because of
content of
his
which
arewe
aware when that happened,
but
speech,
because he submitted chits
Leone was consistent
his
application
open
for items that were not held
for
temporal
public
Code’s
restriction on
public commentary until Item 13 on the
only
comments. The
reasonable inference
agenda. When the Board heard com-
from this evidence is that
prevented
during
ments
Item
Kindt was never
making
from
regardless
comments
speak
an opportunity
denied
about
of their content at a time that the Code’s
any subject
fact,
In
wished.
several
time, place, and manner provisions re-
personally derogato-
times he addressed
public
stricted
simply
comments. This case
ry remarks to individual Board members
does
involve suppression
not
was
not silenced.
was he
Nor
si-
speaker’s
based on the
viewpoints or iden-
gen-
lenced before his time
expired.
tity
will
and we
not
repackage it so
it
eral,
actually ejected
when Kindt was
becomes such case.
from the
meetings
Board
he was dis-
rupting
proceedings
The video and the
by yelling
report
sheriffs
shows
trying
speak
not
upset
when it was
time for
Leone was
and Galena was
only
an Item
exception
13 matter. The
calm
the confrontation
nothing-
but
ejection
course,
when
did
come until more. Of
we realize that
in his
sometime after he and
cohort
brief Galena recites that
the audio and
We,
course,
Though
we reiterate
recognize
that Galena’s conduct
entirely
that it is
Kindt’s,
surely
benign
was more
than
possible
meetings
do not
which we
principles
difference does not make the
of law
public
have the minutes members of the
respect
that Kindt set forth with
to a member
spoke out of order.
public
speaking
designat-
at a
time
purpose any
ed for that
applicable
less
here.
inconvenience, annoyance,
far above
recordings of the March
video
out,”
unrest.”).
that,
“was escorted
as Galena
Galena reasons that
show
inas-
“[a]nyone
want[s]
if
else
Leone asked
pub-
comments did not create
much as his
at 21. But that com
Appellant’s br.
go?”
unrest,
suppressed
lic
Leone must have
ment,
impolitic, only
though certainly
speech based on its content. The District
prevent
intent
other
Leone’s
shows
thought
reasoning
that this line of
interrupting
members
logically
begs
was flawed
inasmuch as it
meeting in a similar manner
the Council
whether,
giving
effect to
question
comments.
provided
a time not
*24
time,
legitimate
place,
an
otherwise
evidence,
there is
supporting
Without
regulation,
manner
Leone acted with the
here,
drawing of an inference
none
the
subjective
suppressing speech.
intent
toward
that Leone harbored an animus
Clearly, the
reached the correct
identity
of his
or the draw
Galena because
respect
conclusion
to the Terminiello
of an inference that
the content
ing
with,
empha-
To
as we have
issue.
start
motivated Leone to have
speech
Galena’s
sized,
speech
the
was
restriction
based
meeting “is not a
him removed from the
'
timing,
on its
not its content. Further-
from the
inference
evidence
reasonable
enforcement,
more,
jus-
no matter how
a
of faith.” Northview
leap
instead is
but
tified,
speech,
restriction on
neces-
Motors,
Corp.,
Motors
227
Chrysler
Inc. v.
(3d Cir.2000).27
at the time it
sarily suppresses speech
F.3d
Thus,
public
if a member of the
enforced.
argues that
the state
further
at the
of the Public
of a
lawfully
impose
could
a restriction based
meeting
wanted to discuss his
only if the
speech
on the content of his
birthday
party,
proposed
child’s
unrest. See
speech
public
would cause
a
speech, though
presenting
danger
Chicago, 337 U.S.
City
Terminiello v.
anyone,
far removed from the
would be so
(1949)
L.Ed. 1131
69 S.Ct.
meeting,
or the
business of
Council’s
(“[F]reedom
though
not abso
speech,
County’s
general,
or
business in
that the
lute,
protected against
...
is nevertheless
chairperson
suppress
could
shown
censorship
punishment,
unless
raising
without
First Amendment
issues.
present dan
likely
produce
a clear and
Eichenlaub,
The fact that Leone threatened Galena and that Leone silenced Ga- charges ejected with “harassment” as he lena because of the content of Galena, ostensibly because Galena accused identity. and/or *28 acting illegally, the council of sup- further sum, jury was entitled to conclude ports jury’s conclusion that Leone was that Leone was impermissibly motivated by motivated the content of Galena’s by content his iden- and/or trial, speech. At to ex- attempted tity. We should be hesitant to override plain away, this threat testifying jury’s judgment with our own. I more or less meant “disorderly conduct.” would affirm the jury verdict. at 110. But App. was not re- quired to credit explanation. As the charged making credibility
factfinder
determinations, it appears they did not. Supreme Court has instructed that we
are guess not to second such credibility Reeves,
determinations. 530 U.S. at