Jose Zurita v. Richard Hyde
665 F.3d 860, 2011 U.S. App. LEXIS 25558, 2011 WL 6644218 (2011)
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Rule of Law:
A public official violates clearly established First Amendment rights when they condition a person's right to speak in a designated public forum on an apology for prior speech, or when they are personally involved in imposing a permit fee for a public protest that is calculated based on the content or viewpoint of the speech.
Facts:
- In 2002, the City of Waukegan passed a 'Towing Ordinance' that prompted protests from citizens who believed it was discriminatory.
- On January 18, 2004, at a rally against the ordinance, Jose Surita criticized a city employee, Susana Figueroa.
- Two days later, at a Waukegan City Council meeting, Mayor Richard Hyde refused to allow Surita to speak during the 'audience time' unless he first apologized to Figueroa for his comments at the rally.
- Margaret Carrasco participated in a protest march against the Towing Ordinance on June 28, 2004.
- After Police Chief William Biang learned Carrasco was planning another rally, he had her brought to a meeting on July 1, 2004, where she was informed she would need a permit under the city's 'Assembly Ordinance'.
- The city then demanded a $1,500 permit fee from Carrasco, a figure based on Biang's determination that more police officers were needed specifically because the event was a protest, as opposed to a rally in support of the city.
- In August 2004, Chris Blanks planned a protest rally in a park owned by the Waukegan Park District, not the City.
- After learning of the rally, Chief Biang instructed his deputy to 'handle it.' A city attorney then sent Blanks a letter, with a copy to Biang, threatening him with a violation for failing to comply with the City's Assembly Ordinance, causing Blanks to cancel the rally.
Procedural Posture:
- Jose Surita, Margaret Carrasco, and Chris Blanks filed a lawsuit under 42 U.S.C. § 1983 in federal district court against the City of Waukegan, Mayor Richard Hyde, and Police Chief William Biang.
- The plaintiffs alleged violations of their First Amendment rights of free speech, assembly, and petition.
- Defendants Hyde and Biang moved for summary judgment, asserting they were protected by qualified immunity.
- The district court denied the defendants' motion for summary judgment on the basis of qualified immunity.
- Mayor Hyde and Police Chief Biang (appellants) filed an interlocutory appeal of the denial of qualified immunity to the U.S. Court of Appeals for the Seventh Circuit, with Surita, Carrasco, and Blanks as appellees.
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Issue:
Are a mayor and a police chief entitled to qualified immunity from a § 1983 lawsuit alleging First Amendment violations when the mayor barred a citizen from speaking at a public meeting until he apologized for prior speech, and the police chief was personally involved in applying a content-based permit fee to citizens planning protests?
Opinions:
Majority - Clevert, District Judge.
No, the officials are not entitled to qualified immunity for their actions against Surita and Carrasco, but the chief is entitled to immunity for his actions against Blanks. A public official violates clearly established First Amendment rights by engaging in content-based discrimination against speakers in a designated public forum. For Surita, the city council's audience time was a designated public forum. By barring Surita from speaking based on his identity and prior statements, and conditioning his speech on an apology, Mayor Hyde engaged in a content-based exclusion of a speaker, which is subject to strict scrutiny and unconstitutional. This right was clearly established. For Carrasco, Chief Biang was personally involved in applying a content-based permit fee; the fee was calculated based on his determination that more police were needed because it was a protest. This constitutes an unconstitutional prior restraint under the clearly established precedent of Forsyth County v. Nationalist Movement. For Blanks, however, Chief Biang was not personally involved enough to be held liable. His general instruction to a subordinate to 'handle it' and being copied on a letter does not create a sufficient causal link to the subsequent unconstitutional application of the ordinance.
Concurring-in-part-and-dissenting-in-part - Manion, Circuit Judge
Yes, Police Chief Biang should be entitled to qualified immunity on Carrasco's claim as well. The evidence does not show that Biang was personally involved in the unconstitutional application of the Assembly Ordinance to Carrasco. The city attorney, Gretchen Neddenriep, made the decision to apply the ordinance and calculate the fee. Biang's role was limited to public safety logistics, such as estimating the number of officers needed, and he could not have reasonably foreseen that the attorney would use his estimate to unconstitutionally penalize Carrasco, especially since the ordinance had never been enforced before. Without personal involvement in the constitutional deprivation, Biang cannot be held liable.
Analysis:
This decision reinforces the high level of protection afforded to speech in designated public forums, such as the public comment period of a city council meeting. It clarifies that even ad hoc rulings by a presiding official, like a mayor, are subject to strict First Amendment scrutiny. The case also serves as a strong reaffirmation of Forsyth County, prohibiting government officials from charging higher security fees for protests based on the content of the speech or the anticipated hostility of the crowd. Finally, it provides a practical example of the 'personal involvement' requirement for § 1983 liability, demonstrating that a superior officer's vague directive to a subordinate is not, by itself, sufficient to establish liability for the subordinate's subsequent constitutional violation.
