!KIDNAPPED!
Sam Dehne's OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
It is impossible to read this poignant analysis of the Airport Kidnaping... and not demand
that this horrible abuse of power by the Reno Airport be sent to jury trial.
!KIDNAPPED!
Sam Dehne's OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
It is impossible to read this poignant analysis of the Airport Kidnaping... and not demand
that this horrible abuse of power by the Reno Airport be sent to jury trial.
JEFFREY A. DICKERSON
Nevada Bar No. 2690
9655 Gateway Dr., Suite B
Reno, NV 89511
(775) 786-6664
MARTIN G. CROWLEY
210 S. Sierra St., Ste. B102
Reno, NV 89504
(775) 786-5297
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
* * *
DENIS EDWARD DEHNE, ............CASE NO. CV-N-00-0649-ECR-(VPC)
....................................................OPPOSITION TO (Airport) MOTION FOR SUMMARY JUDGMENT
Plaintiff,
vs.
RICHARD HILL, an individual, KRYS BART,
an individual, GARY NOTTINGHAM, an
individual, AIRPORT AUTHORITY OF
WASHOE COUNTY, a political
subdivision of the State of Nevada,
Defendants.
_____________________________/
Plaintiff opposes the Motion for Summary Judgment as follows:
1. Introduction.
Plaintiff's removal from the Board meeting violated Plaintiff's First Amendment rights. Plaintiff had a right to speak on matters of public concern. He did so at the podium with respect to the public comment rules. The defense appears to concede that this was protected speech. Plaintiff also had the right, if properly recognized, to comment upon what he reasonably perceived to be a false accusation of misconduct by a member of the audience during a public meeting.
Plaintiff had the right not only to exercise this speech, and not only not to be disrupted from making such a speech, but, most important here, not to be punished for engaging in such speech. It is this sense in which the retaliation claim is pursued.
2. Clarification of What Is In Evidence.
There is no testimony or affidavit or declaration provided by any of the Defendants on the substance of the matters at hand. This is important. For instance, the defense argues that Chairman Hill overheard something said by Mr. Dehne as "spit on it". Moving points and authorities at 3:13. The defense further states that Chairman Hill assumed that this was a continuation of offensive criticism that was out of order. There is no evidence in the record as to what Chairman Hill overheard or what he assumed. This becomes critical in the qualified immunity analysis, as Defendant Hill has proffered no proof as to his state of mind.
The defense characterization of the evidence is also skewed. For instance, the defense makes much of its literal questioning of the Plaintiff limiting the phrase "there is spit on that" (Plaintiff deposition at 92: 13-14) to "spit on it". It is undisputed that the Plaintiff told the man behind him, "there is spit on that." Id. at 92:13-14. The later questioning limited itself to the latter part of this phrase. The defense argues from this that Chairman Hill's characterization from the podium of what he heard (with no proof as to what he heard) was accurate. Such twisting of the facts may work in closing argument after a jury trial, but it is not the foundation for summary judgment.
The defense next characterizes Plaintiff's response as calling Chairman Hill a liar. The audio and video tapes reflect Plaintiff stating repeatedly "you're wrong," not "you're a liar."
Another example of skewing the evidence is the omission as to the fact that Plaintiff did sit down when he was told to sit down. The videotape and the audiotape and the Plaintiff's deposition show that he was seated for several minutes before the time he was told to leave. We attach a "still" from the videotape that shows Plaintiff sitting as the officers began his removal.
The defense suggests Plaintiff standing was disruptive, but is it not a show of respect to stand when recognized by the Chair?
The defense argues that it was Plaintiff's conduct that distracted the orderly progression of the meeting. This ignores the undisputed fact that the genesis of the interchange came from Chairman Hill recognizing and engaging Plaintiff in reactionary tone.
Another example is the asserted "great latitude in allowing" Plaintiff to exceed his allotted time at the podium. There is no evidence that Plaintiff exceeded his allotted time. It appeared to Plaintiff at the podium that he had exceeded the allotted time, but there is no evidence that he in fact did. More important, there is no evidence that anyone "allowed" this to occur. "Allowing" implies that the person knows that the time has been exceeded. There is no evidence that anyone in control of the speaker's time knew that the time had been exceeded, and thus the conclusion that Plaintiff was "allowed" to exceed the time is without foundation.
Another example is the defense characterizing Plaintiff's behavior from audience as "antics". Again, Chairman Hill initiated the colloquy. Plaintiff was eventually seated as requested. Plaintiff was then removed.
If in fact Chairman Hill could be found by a reasonable juror to have resented the podium comments about his new rules, the same juror should be allowed to infer, by the temporal proximity, that Chairman Hill's "misinterpretation" of the comment from the audience was intentional and that he used that misinterpretation as an excuse to incite and provoke the Plaintiff in order to justify his removal and probable arrest.
If a reasonable juror could reach this conclusion, then the corollary legally is that Chairman Hill set out to punish the Plaintiff for exercising free speech. A reasonable juror could thus conclude that it was Chairman Hill and not the Plaintiff who disrupted the meeting.
3. Defendants' Cases are Distinguishable.
This analysis of the facts distinguishes the situation in Kindt v. Santa Monica Rent Control Board, 67 F.3d 266 (9th Cir. 1995), where there was no recognition from the chair of an audience member as was the case here. And unlike the situation in Kindt, the claim here is not that Plaintiff was prevented from free speech; the claim is that he was punished after the fact for engaging in free speech that offended Chairman Hill. The same distinction applies to White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990).
4. Defendant Hill Violated a Constitutional Right.
The initial qualified immunity inquiry is, based upon the facts viewed most favorably to plaintiff, did the official conduct violate a constitutional right? Saucier v. Katz, 533.S.194, 121 S.Ct. 2151, 2156(2001). If so, the inquiry is then whether the official could nevertheless have reasonably but mistakenly believed that his conduct did not violate a clearly established right. Id. at 2158-9.
Speech on matters of public concern lies at the heart of the First Amendment. Speech involves public concern if it can be fairly construed to relate to "any matter of political and social, or other concern to the community." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684 (1983). Here, Plaintiff spoke from the podium and from the audience of matters relating directly to the conduct by public officials of public meetings, clearly a matter of public concern.
Once protected activity is established, the plaintiff must next show that plaintiff's speech was a substantial or motivating factor in the Defendants' conduct. Mt. Healthy City School District v. Doyle, 429 U.S. 274, 287 (1977). Chairman Hill presumably heard Appellant's protected activity and with that knowledge acted as he did within minutes of the protected activity, giving rise to an inference of causation or motivation based upon speech. See, e.g., Schwartzman v. Valenzuela, 846 F.2d 1209, 1212 (9th Cir. 1988) (knowledge of protected activity and close proximity in time between action and alleged retaliatory employment decision can raise genuine issue of material fact or issue of "motivating factor"); see also Clements v. Airport Authority, 69 F.3d 321, 334-5 (9th Cir. 1995) (reversal of summary judgment where officials knew of protected activity). Additionally, the record reflects concern by Hill about the speech of Plaintiff. According to the defense spin, he commanded that it cease (versus that he sit) and ordered Plaintiff removed because it did not cease (although he did sit). According to the defense spin on the facts, Hill reacted to a comment that tied directly back to the expressive acts of Plaintiff at the podium, feigning spitting on the new rules. See Keyser v. Sacramento City Unified School District, 238 F.3d 1132, 1140(9th Cir. 2001)(noting requirement of additional evidence to support said inference). Thus, accepting the facts most favorably to Plaintiff, a constitutional violation is established.
5. An Official Could Not Reasonably Believe This Conduct Was Constitutional Under
Clearly Established Law.
Pre-Saucier Ninth Circuit authority seems pretty clear that in the governmental whistleblowing context, individuals are not likely to attain dismissal on qualified immunity grounds by arguing that disruption occurred. Hufford v. McEnaney, 249 F.3d 1142 (9th Cir. 2001). Although the Hufford Court addressed the balancing test on disruption in the employment context, the same analysis could apply here, where there is the purported "defense" that any right to speech should be balanced against the "right" of Defendants to prevent disruption of the meeting at hand. See also Keyser, supra at 1136-8(discussing cases where disruption outweighed as a matter of law by certain speech on public concerns, negating qualified immunity). Here, Plaintiff protested rules concerning public comment, and did so during the public comment portion of the meeting. The alleged disruption occurred minutes after leaving the podium, after Chairman Hill essentially recognized a member of the audience, misrepresented what the member said, and threatened his removal. The expressive conduct at the podium related to the Chair's later admonition about spitting as a form of expression. The member protested the admonition/accusation, which took what happened out of context, and so protested while being specifically recognized by the Chair. When told to sit, he complied. The request for an apology was speech directed to a public official and those listening, which was a complaint about official misconduct - - a Chair's abuse of power in humiliating a citizen falsely accused before the Board, those present and those watching on television.
Defendants cannot rely upon disruption instigated by the defendants or exacerbated by the defendants to outweigh the plaintiff's First Amendment rights. Hufford v. McEnaney, 249 F.3d 1142 (9th Cir. 2001). Here, there is at least an issue of fact. In the public employment context, where disruption is always a consideration, qualified immunity is unwarranted where there are disputed facts concerning the alleged disruption. See, e.g., Keyser, supra.
We have shown that the First Amendment right not to suffer retaliation for free speech in this limited public forum was clearly established at the time, and that no official could have engaged in conduct that violated that right mistakenly but reasonably believing it to be constitutional to do so.
6. Hill was the final policymaker, rendering the Authority liable.
The Bylaws are attached hereto, showing that the Chair presides over meetings and conducts the meetings of the Board. Hence, as it relates to the conduct of the subject meeting and the admonition/accusation and the ouster, Hill's status was a final policymaker for the Authority. His actions, if unconstitutional, and if deliberately indifferent, give rise to policy as a basis for municipal liability. County Commissioners v. Brown, 520 U.S. 397, 117 S.Ct. 1382(1997); Pembaur v. Cinncinati, 475 U.S. 469, 106 S.Ct. 1292(1986). Whether the conduct was such is disputed. Hence the motion should be denied as to the Authority on the First Amendment claim.
7. Conclusion
Based upon the foregoing, Defendants' Motion for Summary Judgment should be denied as to the First Amendment claim against Hill and the Airport Authority. Plaintiff withdraws the remaining claims against all parties as discussed with opposing counsel.
LAW OFFICE OF
JEFFREY A. DICKERSON
LAW OFFICE OF
MARTIN G. CROWLEY
"click" to read the Court's silly Order again
