For those who think this case will be a slam dunk, don't be so sure. SCOTUS recently rejected an appeal from a man who was arrested for making a parody FB page of his local police department, then denied the right to sue on the grounds of 'qualified immunity'.[0] As a side note, this was the case where The Onion submitted a humorous amicus brief;[1] it's worth a read.
> SCOTUS recently rejected an appeal from a man who was arrested for making a parody FB page of his local police department
The police in Novak v. Parma were executing search and arrest warrants [1]. There was no judicial oversight in this case.
Also, Novak established (EDIT: reaffirmed) "protected speech cannot serve as the basis for probable cause." The court was unclear "whether [his] actions—deleting comments that made clear the page was fake and reposting the Department’s warning message—[were] protected speech." Very different from reading a prepared statement at a city council meeting [2].
The important part is the use of protected speech as probable cause to seek the warrant. If officers are shielded from accountability for illegally using protected speech as a basis for probable cause, then the lack of a warrant doesn't help Petersen.
> Novak established "protected speech cannot serve as the basis for probable cause."
It did not establish this; this was long standing case law, as the opinion points out. What it established was that police have qualified immunity from being sued for illegally using protected speech as probable cause if 'judges could “reasonably disagree”' about whether or not the speech is protected. In this case, if the PD can convince a judge that there was any room at all for 'reasonable disagreement' about whether or not a council rule that prohibits "derogatory statements or comments about any individual" is unconstitutional, then the PD will get let off the hook, even if the speech ends up being unambiguously protected. All that is needed is the 'reasonable disagreement' to immunize the officers, even if the conclusion is foregone.
> important part is the use of protected speech as probable cause to seek the warrant
Sure. But Novak didn't just speak. He also moderated comments, et cetera, in a way that made the court unsure if he was solely participating in protected speech. That ambiguity doesn't exist here.
> this was long standing case law
Sorry, I should have said reaffirmed.
> then the PD will get let off the hook
The mayor ordered the police to arrest Petersen. There might be disagreement as to the police officer's liability. But the ambiguity around whether there was an "order" (per Pembaur) authorizing action isn't there. The municipal liability is just much clearer.
One more thing: Novak didn't seek to overturn the Ohio law that "makes it illegal to use a computer to disrupt or impair police functions." In this case, the town's law is itself being challenged. Again, much clearer.
The bar is much lower than whether or not the court thinks the speech is protected or not. The court could unambiguously believe the rule is unconstitutional and the speech was protected, but if they believe there's any room at all for 'reasonable disagreement' on the matter among other judges, then the officers and officials get immunized.
> The municipal liability is just much clearer.
This would be nice, assuming courts agree, but until officers and officials start getting held personally liable for these events, they will never stop happening. If the PD and officials are shielded from liability but the municipality isn't, then all that happens is that taxpayers will continue to pick up the tab for police misconduct.
> In this case, the town's law is itself being challenged. Again, much clearer.
Well, he's seeking damages from the mayor, officers, and municipality first and foremost; the council rule has actually already been removed. I hope you're right that he might get something from the municipality, but I doubt he'll get anything from the mayor or PD.
> if they believe there's any room at all for 'reasonable disagreement' on the matter among other judges
Sure. And given the officers consulted the "City’s Law Director and the judges who issued the warrants," there was evidence of that disagreement. There were no similar consultations in Petersen's case.
> until officers and officials start getting held personally liable for these events, they will never stop happening
I don't believe there is evidence for this. Municipalities vigorously defend themselves for a reason. Yes, in large systems, the cost gets baked in--but Newton isn't a big nor rich town.
> he might get something from the municipality, but I doubt he'll get anything from the mayor or PD
I agree. And I think that could even be fair, especially if the mayor and cop thought they were acting according to the law. The law they relied on didn't come out of nowhere, after all.
In the end, if the only thing that comes out of this is the non-disparagement rule being struck down, I think that's a win. (I generally believe we need qualified immunity reform. But that needs to happen through statute.)
>given the officers consulted the "City’s Law Director and the judges who issued the warrants," there was evidence of that disagreement.
Based on the CiC. v. Husted opinion that the judges cited in Novak, the officers don't need to consult anybody or be aware of a disagreement; there just needs to be the possibility of one, the argument being that we shouldn't hold public officals to a higher standard than judges, so if judges could disagree about the constitutionality of sonething then the officials should be able to as well. This seems like a comically low bar to me that could easily be met here.
> Municipalities vigorously defend themselves for a reason.
Of course they'll defend themselves vigorously in court, but will it change the behavior of the officers and officials in question if they're shielded from liability? I doubt it, though I hope I'm wrong.
> And I think that could even be fair, especially if the mayor and cop thought they were acting according to the law. The law they relied on didn't come out of nowhere, after all.
Well, I suppose if you think that, then you agree about the liklihood of qualified immunity getting applied here. But I can't imagine that the mayor or police believed this rule was constitutional, and I think that shows in their rapid and discrete removal of the rule following Petersen's acquittal.
> the city council delegated
authority to the mayor. For instance, if the mayor thought a comment or question
was “derogatory,” the mayor could enforce the city’s policy however he saw fit . . . Conversely, if someone else thought a
comment or question was “derogatory,” but not the mayor, nothing would happen.
> For instance, if the mayor thought a comment or question was “derogatory,” the mayor could enforce the city’s policy however he saw fit
The mayor doesn't get to define statutory law, though.
Leaving aside "was this comment a problem or not", stopping someone from speaking at a council meeting is one thing, "and then having them arrested for disorderly conduct" is quite another.
> The mayor ordered the police to arrest Petersen.
In most (I'd venture the very very vast majority) of cities, the Mayor is not in the PD chain of command. In fact, generally, the Mayor is a largely ceremonial and strategic role, and if anything, I'd expect the City Operations Manager to be the one.
In fact, here (Washington state), during a lot of the BLM protests and the "take a knee" stance, there was coverage of our Mayor asking the Sheriff to take a knee with her during a protest. He refused. The Mayor also asked the Sheriff (who is considered the senior LEO in the county, for all agencies other than state/federal) to withdraw officers into the City offices as a show of de-escalation, etc. He also declined.
Apropos of anything else, I can't see how that would be a valid order, anyway. It doesn't free anyone from the need for probable cause, for a start. "Officer, what was your cause for arresting this man?" "Well, the mayor ordered me to."
I think your comment is the only one here mentioning qualified immunity. This is definitely another qualified immunity case disguised as a free speech case, I'd expect the outcome to be similar on that alone. Until qualified immunity for police is done away with, police essentially have carte-blanche to do what they want without consequence (barring extraordinary incidents of violence).
[0]https://www.nbcnews.com/politics/supreme-court/supreme-court...
[1]https://www.supremecourt.gov/DocketPDF/22/22-293/242292/2022...