Monteiro v. City of Elizabeth

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

2-8-2006

Monteiro v. Elizabeth

Precedential or Non-Precedential: Precedential

Docket No. 04-3756

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-3756

ARMENIO T. MONTEIRO

v.

CITY OF ELIZABETH;

PATRICIA PERKINS-AUGUSTE, Council President;

ANDREW R. COX, Police Officer;

RICHARD MEOLA, Sergeant of Police

Patricia Perkins-Auguste,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 01-cv-01844)

District Judge: Honorable Jose L. Linares

Argued October 25, 2005

Before: SLOVITER, FISHER, and ROSENN*, Circuit

Judges.

(Filed: February 8, 2006)

Robert F. Varady (Argued)

LaCorte, Bundy, Varady & Kinsella

989 Bonnel Court

Union, NJ 07083

Counsel for Appellant

David F. Corrigan (Argued)

54B West Front Street

Keyport, NJ 07735

Counsel for Appellee

ROSENN, Circuit Judge,

This appeal presents the issue of whether, when

entitlement to qualified immunity depends on a disputed issue

of fact, it is proper to submit that question to a jury. Plaintiff

Armenio T. Monteiro filed an action under 42 U.S.C. § 1983

against defendant Patricia Perkins-Auguste, alleging that when

he was a member of the Elizabeth, New Jersey City Council,

Perkins-Auguste, then President of the Council, violated his

*

The Honorable Max Rosenn, Sr. submitted this opinion

to the Clerk's office for processing on February 2, 2006. Prior

to the filing of the opinion, Judge Rosenn passed away.

2

First Amendment rights by ejecting him from a public meeting

of the Council and having him arrested on a disorderly persons

charge on the basis of his viewpoint. Perkins-Auguste asserted

that she was entitled to qualified immunity and moved for

summary judgment on that ground.

Her motion for summary judgment was denied on the

basis that whether she was entitled to qualified immunity

depended on a disputed issue of material fact–whether she had

Monteiro ejected from the meeting on the basis of viewpoint.

The District Court submitted the disputed factual question to the

jury, which returned a verdict for the plaintiff, Monteiro,

awarding him $10,000 in compensatory damages. The jury also

awarded Monteiro $750 in punitive damages, finding that

Perkins-Auguste had acted recklessly and with callous

indifference to Monteiro’s rights.

Perkins-Auguste moved for judgment as a matter of law

following the jury verdict under Fed. R. Civ. P. 50, or in the

alternative, for a new trial under Fed. R. Civ. P. 59. The District

Court denied her motion and entered judgment in favor of

Monteiro. She timely appealed. We affirm the judgment

because we find no error in the proceedings. The jury’s verdict

is based on sufficient evidence.

3

I.

Perkins-Auguste challenges the denial of judgment as a

matter of law,1 the submission of punitive damages to the jury,

and the admission of two items of evidence. Perkins-Auguste

argues that the District Court erred in denying her motion for

judgment as a matter of law on the grounds of qualified

1

Perkins-Auguste styles her appeal as an appeal of the

District Court’s denials of her motion for summary judgment

before trial, her motion for judgment as a matter of law after the

close of the plaintiff’s case, and her motion for judgment as a

matter of law following the adverse jury verdict. We note that

it is not clear what rights, if any, Perkins-Auguste retained to

challenge the legal determinations the trial judge made at

summary judgment, which she did not appeal. If she retained a

right to raise a legal question, was that right limited to legal

errors made at trial and the sufficiency of the evidence to

support the jury’s verdict? Or did it continue to extend to the

legal questions twice raised in the motions for summary

judgment and certification under 28 U.S.C. § 1292(b), and twice

decided adversely to the Defendant? The Supreme Court has

strongly urged that the legal question of qualified immunity be

decided before trial in order to preserve its protections. Saucier

v. Katz, 533 U.S. 194, 200–201 (2001); Mitchell v. Forsyth, 472

U.S. 511, 525–526 (1985). Qualified immunity is “‘an immunity

from suit rather than a mere defense to liability; and like an

absolute immunity, it is effectively lost if a case is erroneously

permitted to go to trial.’” Saucier, 533 U.S. at 200–201 (quoting

Mitchell, 472 U.S. at 526). We treat her appeal as an appeal of

her motion for judgment as a matter of law.

4

immunity because a reasonable official in her position would not

have understood that ejecting Monteiro from the meeting

violated his First Amendment rights. She further argues that the

District Court erred in submitting the question of punitive

damages to the jury because Monteiro had presented no

evidence that she acted intentionally or deliberately to violate

his constitutional rights. Perkins-Auguste also argues that it was

substantial error for the District Court to admit evidence of

Monteiro’s acquittal, in municipal court, of the disorderly

persons charge, and a City Legal Department Memorandum of

Law outlining the procedures to be followed by a Council

President in ejecting an unruly member.

II.

On April 10, 2001, the Elizabeth City Council convened

for the purpose of considering the City’s proposed annual

budget. Perkins-Auguste was, at that time, President of the

Council and the officer in charge of presiding over the meeting.

The meeting was unusually well-attended, with approximately

300 members of the community in the audience. The meeting

was taped and broadcast by a local cable station. The members

of the Council spoke in turn about their views on the proposed

budget.

Monteiro expressed at length his strong objections to the

budget, exercising his constitutional right to petition the

government on behalf of himself and his constituents. After

some discussion from other councilpersons, Perkins-Auguste

began to speak. Rather than address the merits of the budget,

however, she immediately leveled a pointed attack at Monteiro

5

for what she perceived to be his role in the distribution of a

pamphlet protesting the budget and inviting citizens to attend the

meeting. The tape reveals that Perkins-Auguste turned toward

Monteiro, held up a copy of the pamphlet and stated:

I just want to say, this is deception,

what was found in the Council

chambers. When you tell residents

to come up to City Council because

they’re going to be charged

additionally 600 and 800 dollars for

owning a home in the City of

Elizabeth, this is deception,

Councilman Monteiro, with your

name on it.

Monteiro interrupted her: “You’re bringing up my name.

You can’t bring up my name and then sit there and . . . .” he

began. Perkins-Auguste swiftly ruled him out of order,

pounding her gavel. Monteiro continued to try to defend

himself, and Perkins-Auguste continued to pound her gavel.

Perkins-Auguste then asked two municipal officers, who were

acting as sergeants-at-arms, to remove Monteiro from the

meeting.

As the officers approached Monteiro, Perkins-Auguste

continued her remarks:

As I was stating, this is deception,

when Council members put this

type of propaganda throughout the

6

community, when you state there’s

a 600, an 800 dollar tax increase.

My taxes, I own a home in this city,

my taxes over the last two and three

years only went up twenty-five,

thirty dollars for the entire year. So

I don’t know where you guys are

coming off with a thousand dollars,

600 dollars, 800 dollars tax

increase. Get the facts straight. If

you don’t want to vote for the

budget, don’t vote for the budget,

but do not lie to the general

population. This is disgusting. If

you want people to come to the

meeting, you tell them to come up

because there’s something that they

need to learn. Do not lie. It’s

beyond deception.

Monteiro then said: “Well, we’ll wait for the bills to

come out.” In response, Perkins-Auguste exclaimed: “This man

cannot keep his mouth shut,” and once again asked that he be

removed. Monteiro responded that he would not voluntarily

leave the meeting, and that, if she wished to have him removed,

she would have to have him arrested. As the officers asked

Monteiro to step out from his seat, one member of the Council

advised that they should “ask for a legal opinion on this,” and

that “there are rules and regulations in our code that we can

adopt right now.” Perkins-Auguste did not appear to consult or

follow any established procedure in ejecting Monteiro. The

7

evidence introduced at trial reveals that there were at least two

possible procedures available to her under the City Council’s

governing rules. The rules required that the Council vote on the

matter of a councilperson’s removal.2 No vote was taken.

Monteiro was advised by a City Attorney that he was required

to abide by the orders of the Council President, to which he

responded, “I apologize, I understand that.” Soon thereafter,

Perkins-Auguste called a five-minute recess.

2

A legal memorandum of the City Law Department, dated

September 26, 2000, less than a year before the April 10, 2001

meeting, states: “The Rules of Procedure do not provide a

specific remedy available to the City Council President if a

member fails to comply with the orders of the President after

being ruled out of order repeatedly.” The memorandum notes,

however, that the City Rules incorporate Robert’s Rules of

Order, which provide the authority to eject an unruly member.

The memorandum concludes: “Therefore, it is our opinion that

if a member of the City Council repeatedly refuses to comply

with the orders and rulings of the President, the member . . . may

be ejected . . . by vote of a majority of those Council members

present and voting.” In addition, the Rules provide that “[a]ny

person who shall disturb the peace of the Council, make

impertinent or slanderous remarks or conduct himself in a

boisterous manner while addressing the Council shall be

forthwith barred by the presiding officer from further audience

before the Council, except that if the speaker shall submit to

proper order under these rules, permission for him to continue

may be granted by a majority vote of the Council.”

8

When the Council reconvened, Monteiro was still sitting

in his Council chair. Perkins-Auguste immediately asked the

officers to escort Monteiro out of the meeting. They replied that

they could not do so unless he was formally placed under arrest.

After some vacillation, Perkins-Auguste agreed. She instructed

the officers to place Monteiro under arrest and remove him from

the meeting. The officers handcuffed Monteiro and led him

from the meeting. Perkins-Auguste then proceeded to speak at

length to the audience regarding her actions:

He filibustered for over twenty-five

minutes. Not one Council member

opened their mouths. As soon as I

speak and others speak, he thinks

he can just talk. That is not how

this Council will run meetings. It

was disgraceful, and I would not

put my Council colleagues in it in

terms of having them vote on it.

That’s a decision the President

must make, and I am saddened by

it, because I believe in free speech

and I believe in representation.

She then raised a copy of the offending pamphlet and

continued her quasi-prosecutorial attack in a more aggressive

tone:

But when you have Council people

who allow this type of propaganda

to go out with their name on it to

9

lure City residents up into Council

meetings, it’s a disgrace also. I

own a home in this City, and for

over the last four years, taxes have

not gone up no more than three

percent, if any, in any of those

given years. Twenty-five dollars

here, maybe seventy or fifty dollars

here, nothing more. We all hate to

raise taxes, but it’s something you

have to do if you are an elected

municipal official. Taxes is just a

part of the nasty job. Taxes is a

nasty word, but we must realize,

it’s a reality in the United States of

America. And again, I apologize to

every resident in the City of

Elizabeth who witnesses this

tonight or tomorrow or whenever

you see this on TV. We are trying

to conduct the City business. . . .

Our chief role as Council

representatives is to allocate funds

to run the City, to investigate, and

to appropriate. And if we cannot

do that in a decent, orderly manner

and respect one another’s positions,

then we’re just all for waste.

Again, my colleagues, I apologize

to you, but he left me with no

10

decision but to have him to be

removed. Constantly interrupting

throughout the entire meeting,

constant warnings. I have a

two-and-a-half year old, and I was

talking to him like my child, stop,

stop. You’re going to get it, stop.

You’re going to be thrown out of

here, stop. There comes a point in

time when you must act, and again,

I apologize to all those who

witnessed this, you in the audience,

I apologize but he left me no other

choice. I cannot allow my

colleagues to overrun the meetings

just to make a point.

And I was so upset when I saw this

[pamphlet] out in the pews to get

people to come up to the meeting,

600, 800 dollars. That is not how

you get people to be informed.

This is scare tactics. His name is

on it, he allowed it.

As a result of his removal from the meeting, Monteiro

was deprived of his opportunity to vote on the budget. He was

also charged with disruption of a public meeting in violation of

11

New Jersey law, but subsequently found not guilty of the

offense in municipal court.3

Monteiro filed a civil suit against the City of Elizabeth,

the police officers who removed him from the City Council

Meeting, and Perkins-Auguste in her capacity as President of the

City Council. He asserted various state law claims and claims

under 42 U.S.C. § 1983 for violations of his First Amendment,

Fourth Amendment, and due process rights. Monteiro’s claims

against the City and the police officers were disposed of by

voluntary dismissal and on summary judgment, as were most of

his claims against Perkins-Auguste. The District Court denied

Perkins-Auguste’s motion for summary judgment on Monteiro’s

claim under § 1983 for violation of his First Amendment rights.

Perkins-Auguste argued in her motion for

summary judgment that she was entitled to qualified immunity

on Monteiro’s First Amendment claim. The District Court

disagreed, however, finding that whether she was entitled to

qualified immunity depended on the disputed question of her

motivation for ejecting Monteiro from the meeting. The District

3

The offense of “disrupting meetings and processions” is

defined as follows:

A person commits a disorderly persons offense if,

with purpose to prevent or disrupt a lawful

meeting, procession or gathering, he does an act

tending to obstruct or interfere with it physically.

N.J. STAT. ANN. § 2C:33-8.

12

Court held that the First Amendment protected Monteiro’s right

to speak on public issues at a public meeting and from adverse

actions taken by officials presiding over the meetings. The

District Court found that the council meeting was a limited

public forum, subject to reasonable time, place, manner

restrictions on speech. The District Court noted that in order to

satisfy the First Amendment, time, place, manner restrictions

must be viewpoint-neutral, narrowly tailored to serve a

significant governmental interest, and must leave open ample

alternative channels for communication.

The District Court found that provisions of the City of

Elizabeth’s Rules of Procedure forbade Council members from

delaying or interrupting proceedings and allowed the presiding

officer to bar unruly members “except that if the speaker shall

submit to proper order under these rules, permission for him to

continue may be granted by a majority vote of the Council.”

The District Court held that these provisions were facially valid

time, place, manner restrictions because they were viewpoint-

neutral, narrowly tailored to serve the significant governmental

interest in conducting orderly and efficient meetings of a public

bodies, and left open ample alternative channels of

communication. But the District Court concluded that the

factual record raised a disputed question of fact whether

Monteiro was silenced by Perkins-Auguste based on his views

on the budget or her need to maintain order:

[A] fact finder hearing the history

between the parties, the words that

were actually said at the meeting,

and viewing Plaintiff’s conduct as

13

shown in the videotape, could

reasonably conclude that the

Plaintiff was not being disruptive

and that Ms. Perkins-Auguste’s

actions were motivated by her

antipathy to Plaintiff’s particular

outspoken views on the budget and

his alleged sponsorship of the

“offensive” flier that attacked the

city’s budgetary proposals. Indeed,

prior to the event, Defendant was

aware of Plaintiff’s view and knew

that he was going to vote and argue

against the budget. Therefore,

material questions of fact exist as to

whether Defendant’s motive for

acting against Monteiro resulted

from the content of his speech

(constitutionally impermissible) or

was an appropriately-limited time,

place and manner restriction

(constitutionally permissible). A

rational jury could infer that

Defendant Perkins-Auguste singled

Plaintiff out because of the content

of his speech, or that she was

merely trying to maintain order for

the efficient administration of her

legislative responsibilities.

14

Monteiro v. City of Elizabeth, No. 01-1844, at 22–23 (D.N.J.

Nov. 12, 2003). The District Court further concluded that the

availability of qualified immunity depended on this disputed

issue of fact:

If Ms. Perkins-Auguste’s

motivation in removing Mr.

Monteiro was her animosity

towards him and the desire to stifle

his view on the budget, then Ms.

Perkins-Auguste as a reasonable

public official would have known

that her specific conduct violated

the Plaintiff’s clearly established

rights and was not subject to

qualified immunity. See Anderson

v. Creighton, 483 U.S. 635, 640

(1987). In as much as these

questions must be resolved by a

trier of fact and determined perhaps

through the use of a specifically-

tailored jury verdict questionnaire,

it would be improper to determine

this matter via summary judgment.

Id. Accordingly, the District Court concluded that the question

of Perkins-Auguste’s motivation in ejecting Monteiro from the

meeting was a disputed issue of material fact for the jury to

decide, precluding summary judgment on Monteiro’s First

Amendment claim against Perkins-Auguste.

15

III.

We review a denial of judgment as a matter of law de

novo, viewing the evidence in the light most favorable to the

prevailing party. Caver v. City of Trenton, 420 F.3d 243, 262

(3d Cir. 2005). Judgment as a matter of law is only appropriate

if “there is no legally sufficient evidentiary basis for a

reasonable jury to find for [the moving] party on that issue.”

Fed. R. Civ. P. 50(a)(1).

The doctrine of qualified immunity protects government

officials from civil damage suits for official conduct that does

not violate clearly established law of which a reasonable person

would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Qualified immunity “‘gives ample room for mistaken

judgments’ by protecting ‘all but the plainly incompetent or

those who knowingly violate the law.’” Hunter v. Bryant, 502

U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335,

341, 343 (1986)).

It is clearly established that when a public official

excludes a elected representative or a citizen from a public

meeting, she must conform her conduct to the requirements of

the First Amendment. See, e.g., Eichenlaub v. Twp. of Ind., 385

F.3d 274, 281 (3d Cir. 2004) (applying public forum analysis to

township official’s curtailing of allegedly disruptive speech at

a public meeting); Collinson v. Gott, 895 F.2d 994, 995, 999

(4th Cir. 1990) (removal of citizen from public meeting of

county commissioners for interruptions and truculence); Jones

v. Heyman, 888 F.2d 1328, 1329 (11th Cir. 1989) (mayor’s

silencing and removal of citizen from public meeting for

16

disruptive behavior); Musso v. Hourigan, 836 F.2d 736, 739 (2d

Cir. 1988) (school board’s removal of citizen from public

meeting for disruptive behavior). It is also clearly established

that content-based restrictions on speech in a public forum are

subject to strict scrutiny, while viewpoint-based restrictions

violate the First Amendment regardless of whether they also

serve some valid time, place, manner interest. See, e.g., Good

News v. Milford Cent. Sch., 533 U.S. 98, 106–107 (2001);

Rosenberger v. Rector & Visitors of Univ. Of Va., 515 U.S. 819,

829 (1995); Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384, 392–393 (1993).

Thus, if Perkins-Auguste acted with an intent to suppress

Monteiro’s speech on the basis of viewpoint, she violated

clearly established law and is not entitled to qualified immunity.

In cases in which a constitutional violation depends on evidence

of a specific intent, “it can never be objectively reasonable for

a government official to act with the intent that is prohibited by

law.” Locurto v. Safir, 264 F.3d 154, 169 (2d Cir. 2001).

Accordingly, the District Court did not err in holding that

whether Perkins-Auguste’s conduct violated clearly established

law depended upon her motivation for ejecting Monteiro from

the meeting. Furthermore, it was not error to submit this

question to the jury because there was sufficient evidence from

which a reasonable jury could conclude that Perkins-Auguste

acted with a motive to suppress Monteiro’s viewpoint.

Although qualified immunity is a question of law

determined by the Court, when qualified immunity depends on

disputed issues of fact, those issues must be determined by the

jury. See Johnson v. Jones, 515 U.S. 304, 313 (1995) (qualified

17

immunity may turn on disputed issues of fact); Karnes v.

Skrutski, 62 F.3d 485, 491 (3d Cir. 1995) (“While the qualified

immunity defense is frequently determined by courts as a matter

of law, a jury should decide disputed factual issues relevant to

that determination.”). Motive is a question of fact that must be

decided by the jury, which has the opportunity to hear the

explanations of both parties in the courtroom and observe their

demeanor. See Mitchell v. Forsyth, 472 U.S. 511, 529 (1985)

(improper intent is a pure question of fact); Walker v. Horn, 286

F.3d 705, 710 (3d Cir. 2002).

Monteiro adduced sufficient evidence at trial from which

a reasonable jury could conclude that Perkins-Auguste acted with

a motive to suppress Monteiro’s speech based upon his

opposition to the budget. The jury saw the videotape of the

meeting and heard the stridency of Perkins-Auguste’s ad

hominem attack on Monteiro. While Monteiro was arguably

disrupting the proceedings by interrupting her, he was also

defending himself from a personal attack.4 It was Perkins-

Auguste who changed the tone of the meeting from a debate

about the merits of the budget to a quasi-prosecutorial forum.

Monteiro reminded Perkins-Auguste that his constitutional

rights were at stake, stating: “I am not leaving Madam President.

It’s a violation of my civil rights. It’s a violation of my First

Amendment rights.” Perkins-Auguste demonstrated her own

4

Recall the words of Iago in Othello: “Who steals my

purse steals trash . . . . But he that filches from me my good

name / Robs me of that which not enriches him, / And makes me

poor indeed.” William Shakespeare, Othello (3.3.1807–1811).

18

awareness when she apologized to the audience for ejecting him:

“I am saddened by [the ejection], because I believe in free speech

and I believe in representation.” She admitted at trial to having

knowledge of a law memorandum of the City of Elizabeth Legal

Department setting forth a procedure for ejecting unruly

members. See supra note 2. The speed with which she

determined to eject Monteiro from the meeting, her failure to

consult her fellow council members or to negotiate any

compromise, and her failure to follow any established procedure

could be viewed by a reasonable jury as evidence that Perkins-

Auguste’s behavior was emotionally charged and motivated by

anger and personal animosity, rather than a desire to maintain

smooth operation of the meeting. Despite the calm in the

meeting room after the recess, Perkins-Auguste persisted in

having Monteiro removed, in handcuffs, against his will.

Perkins-Auguste’s argument that she could have

conceivably (and constitutionally) ejected Monteiro on the basis

of his disruptions is unavailing in the face of a jury verdict

concluding that she acted with a motive to suppress Monteiro’s

speech on the basis of viewpoint. Qualified immunity does not

require a plaintiff to demonstrate that the official’s conduct was

not reasonable under any conceivable set of circumstances. See

Crawford-El v. Britton, 523 U.S. 574, 593–594 (1998) (“[T]he

policy concerns underlying Harlow do not support Justice

Scalia’s unprecedented proposal to immunize all officials whose

conduct is ‘objectively valid,’ regardless of improper intent.”);

see also Locurto, 264 F.3d at 169–170. When a constitutional

violation depends on evidence of improper intent, it is sufficient

for the plaintiff to “identify affirmative evidence from which a

jury could find . . . the pertinent motive,” in order to survive

19

summary judgment on that issue. Crawford-El, 523 U.S. at 600.

After the jury returns a verdict, judgment as a matter of law will

be granted to the defendant only if that verdict is not based on

sufficient evidence. Fed. R. Civ. P. 50(a)(1).

In conclusion, the District Court did not err in denying

Perkins-Auguste’s motion for judgment as a matter of law. In its

opinion denying the motion, the District Court noted that the jury

found that the Defendant had an unconstitutional motivation for

ejecting Plaintiff from the City Council meeting, thereby

violating Plaintiff’s rights under the First Amendment. Upon

reviewing the evidence in the light most favorable to the

Plaintiff, the District Court found that sufficient evidence existed

to support the jury verdict. We see no error by the District Court.

IV.

Perkins-Auguste also complains that the District Court

committed substantial error in admitting evidence of Monteiro’s

acquittal in municipal court of the disorderly persons charge and

a memorandum of law from the City Law Department pertaining

to the procedure to be followed in ejecting an unruly member of

City Council. We review evidentiary rulings for abuse of

discretion. Abrams v. Lightolier, 50 F.3d 1204, 1213 (3d Cir.

1995). The District Court rejected these objections when it

denied Perkins-Auguste’s motion for a new trial. The District

Court admitted the evidence of Monteiro’s acquittal in the

municipal court as evidence of damages because the bulk of

Monteiro’s $10,000 damage award was a $5,000 claim for

attorney’s fees he incurred defending himself. The District Court

provided a special comprehensive instruction balancing the

20

interests of both parties. The import of the acquittal, the court

noted, was narrowly confined by the instruction. As for the

memorandum of the City’s attorney’s, the District Court wrote:

The memo set forth a legal opinion

which provided specific instructions

on the proper course of action in

case a Council member became

unruly. Perkins-Auguste admitted

to having knowledge of the

existence of this memo prior to the

Council meeting in dispute and

admitted that she did not heed that

advice in that memorandum.

Monteiro v. City of Elizabeth, No. 01-1844, at 10 (D.N.J. Sept.

1, 2004). The court concluded that the memorandum provided

highly probative circumstantial evidence that the ejection of the

Plaintiff was not based solely on his alleged disruption “but was

motivated by the content of his speech.” We agree and hold that

the District Court did not abuse its discretion in admitting these

two items of evidence. Abrams, 50 F.3d at 1213 (3d Cir. 1995).

The District Court also rejected Perkins-Auguste’s claim

that it erred in submitting the question of punitive damages to the

jury. We see no error with respect to the $750 punitive damages

award. “Whether there is sufficient evidence to support punitive

damages is a question of law which we review de novo.”

Alexander v. Riga, 208 F.3d 419, 430 (3d Cir. 2000). The

evidence outlined above amply supports the jury’s conclusion

that Perkins-Auguste acted recklessly and with callous

21

indifference to Plaintiff’s rights in having him removed from the

meeting. Therefore, the punitive damages award will not be

vacated.

V.

For the foregoing reasons, the judgment of the District

Court is affirmed. Costs taxed against appellant.

FISHER, Circuit Judge, dissenting.

The majority characterizes the jury’s finding of improper

intent as the dispositive inquiry in assessing both the existence of

a constitutional violation and entitlement to qualified immunity.

This reflects, in my view, a fundamental misunderstanding of the

relationship of motive to the First Amendment and the doctrine

of qualified immunity. I respectfully dissent.

I.

Borne of judicial concerns over the deleterious effect of

litigation on the work of public officials, qualified immunity

protects those who overstep constitutional boundaries but

nevertheless act in objective good faith. Harlow v. Fitzgerald,

457 U.S. 800, 806 (1982). An official may not be held statutorily

liable for a constitutional violation unless a reasonable person in

the same position, with the same facts, would have understood

that he or she was infringing on the individual’s civil rights. Id.

Inherent in this standard are two separate inquiries. The

court must first determine, as a factual matter, whether the record

22

demonstrates a constitutional infringement. Disputed issues of

historical fact, if relevant to the substantive elements of the

alleged deprivation, must be submitted to the jury for resolution.

E.g., Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002). Only if

a violation is established must the court determine, as a legal

matter, whether a reasonable person would have recognized that

violation. Resolution of this question depends upon the court’s

application of the facts of the case to “clearly established” law.

E.g., Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 194 n.12

(3d Cir. 2005).

A.

The leader of a legislative meeting, like a public employer

or owner of a limited public forum, is constitutionally entitled to

impose limitations on the expressive rights of participants in

order to facilitate the legitimate goals of the gathering. Parker v.

Merlino, 646 F.2d 848, 854 (3d Cir. 1981); see also Rosenberger

v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828-30

(1995); Brennan v. Norton, 350 F.3d 399, 412-13 (3d Cir. 2003).

Speech may be limited on the basis of time, place, and manner –

and even content; however, it may not be restricted on the basis

of viewpoint. Parker, 646 F.2d at 853-54; see also Rosenberger,

515 U.S. at 828-30; Brennan, 350 F.3d at 412-13. So long as

legislators comply with procedural rules and speak on topics

within the scope of the meeting, they enjoy an absolute right to

express their views without restraint and without fear of

subsequent retaliation. A leader who prevents a member from

speaking or punishes a member for prior speech based on his or

her viewpoint has infringed on the member’s First Amendment

rights. Parker, 646 F.2d at 853-54; see also Bond v. Floyd, 385

23

U.S. 116, 135-37 (1966); Velez v. Levy, 401 F.3d 75, 97-98 (2d

Cir. 2005); Degrassi v. City of Glendora, 207 F.3d 636, 645-46

(9th Cir. 2000); Miller v. Town of Hull, 878 F.2d 523, 532-33

(1st Cir. 1989).

But, even if retaliatory motive is established, the leader

may yet escape liability by demonstrating that there is no

causation between the improper intent and the restrictions on the

legislator’s speech: i.e., that the legislator would have suffered

the same restrictions in the absence of improper intent.

Crawford-El v. Britton, 523 U.S. 574, 593 (1998) (“[P]roof of an

improper motive is not sufficient to establish a constitutional

violation – there must also be evidence of causation.”). Proof

that the same actions would have been taken regardless of the

official’s intent cleaves the strand of causation between the

constitutional violation and the harm, precluding success on the

claim. See, e.g., Texas v. Lesage, 528 U.S. 18, 20-21 (1999). No

one would argue, for example, that an individual excluded from

a public forum would have a basis for recovery if the decision to

deny access was compelled by two independently operating

regulations, one of which was viewpoint-biased and one of which

was viewpoint-neutral. A restriction imposed as a result of

improper intent will not give rise to liability if the same

restriction would have been imposed otherwise. Mihos v. Swift,

358 F.3d 91, 105 (1st Cir. 2004) (“[A] defendant might

prevail . . . in a case alleging an intent-based constitutional tort,

without need to inquire as to her motives, if . . . the defendant

showed that she would have reached the same decision even in

the absence of the employee’s protected speech.”) (citing

Crawford-El, 523 U.S. at 592-93).

24

The opinion of the majority does not address, and

presumably rejects, this premise, which has been recognized in

a series of Supreme Court decisions, including Mt. Healthy City

School District Board of Education v. Doyle, 429 U.S. 274

(1977), and Crawford-El v. Britton, 523 U.S. 574 (1998). It

assumes instead that the jury’s finding of unconstitutional motive

demonstrates, beyond cavil, the existence of a constitutional

violation. It does not discuss whether, based on his repeated

disruptions and noncompliance with procedural rules of the

Council, Monteiro would have been ejected from the meeting

even if Perkins-Auguste had not harbored an intent to punish him

for his views.

Perhaps the majority’s reluctance to confront the issue

stems from the District Court’s failure to instruct the jury on this

point. Despite evidence that Perkins-Auguste would have

expelled Monteiro from the meeting regardless of his previously

expressed opinions, the jury was not instructed on this aspect of

causation analysis and never made a finding on the subject.

Perkins-Auguste did not object to this omission during trial, and

has not raised it on appeal, and we are thus constrained to assume

that the jury was properly charged. See Kost v. Kozakiewicz, 1

F.3d 176, 182 (3d Cir. 1993) (noting that issues not raised on

appeal are abandoned). Nevertheless, because causation

constitutes an essential aspect of Monteiro’s claim, and because

Perkins-Auguste argues the matter in her briefs, we must

consider whether a finding of causation would have been

supported by the evidence.

The issue presents a close question. Monteiro spoke out

of turn during the meeting and repeatedly interjected comments

25

during Perkins-Auguste’s speech.5 He did not comply with her

rulings and refused to allow Perkins-Auguste to conclude her

remarks uninterrupted. These circumstances suggest that

Perkins-Auguste, or indeed any legislative leader, would have

taken the same actions regardless of an intent to retaliate against

Monteiro.

However, because the burden of proof on this issue lies

with Perkins-Auguste, see Mt. Healthy, 429 U.S. at 287, and the

record does not compel a finding in her favor, I will assume that

the jury could have reasonably found – if given the opportunity

– that the same actions would not have been taken in the absence

of improper intent. This conclusion, considered with the findings

that Monteiro engaged in protected speech and that Perkins-

Auguste acted with retaliatory intent in suppressing his speech,

demonstrates that a constitutional violation occurred.

B.

The second stage of the qualified immunity analysis is

whether, given the existence of a constitutional violation, a

reasonable person should have recognized it under “clearly

established” law. The hypothetical “reasonable person” is an

5

I will not quibble with the majority opinion’s recitation

of facts except to note that some of its characterizations of the

record – particularly the charges that Perkins-Auguste

“immediately leveled a pointed attack at Monteiro” and

“changed the tone of the meeting from a debate about the merits

of the budget to a quasi-prosecutorial forum,” Maj. Op. at 5, 9,

18 – are less historical than hyperbolical.

26

objective observer, who is aware of the facts known to the

official but possesses an independent knowledge of governing

legal precepts. See Harlow, 457 U.S. at 806. Only when these

rules clearly forbid the actions taken by the official will

immunity be denied. Anderson v. Creighton, 483 U.S. 635, 640

(1987).

1.

Subjective intent plays a limited role in this analysis. It is

considered as an element of the underlying claim when the right

at issue is predicated on the official’s motive, but the presence of

improper motive does not preclude qualified immunity. Grant v.

City of Pittsburgh, 98 F.3d 116, 124 (3d Cir. 1996). An official

who has committed a constitutional violation, even one evincing

improper intent, will nevertheless be immune from liability if an

objective observer in the same position, given the same facts and

knowing of the official’s improper motive, would not have

recognized a constitutional violation under clearly established

law. Mihos, 358 F.3d at 105 (“[A] defendant might prevail . . .

in a case alleging an intent-based constitutional tort, without need

to inquire as to her motives, if . . . the relevant law was not

clearly established . . . .”) (citing Crawford-El, 523 U.S. at 592-

93).

The opinion of the majority holds to the contrary. It

concludes that proof of a motive-based constitutional tort is itself

sufficient to bar immunity, regardless of the clarity (or obscurity)

of the violation under existing law. This position is summarized

in a quote from the Court of Appeals for the Second Circuit, on

which the majority relies: “[W]here . . . specific intent is actually

27

an element of the plaintiff’s claim as defined by clearly

established law, it can never be objectively reasonable for a

government official to act with the intent that is prohibited by

law.” Locurto v. Safir, 264 F.3d 154, 169 (2d Cir. 2001).

The flaw in this approach has been recognized by the

Supreme Court: “[Proof of] unconstitutional motive [will not]

automatically carry[] a plaintiff to trial . . . [if there is] doubt as

to the illegality of the defendant’s particular conduct . . . .”

Crawford-El, 523 U.S. at 592-93. An official may possess an

unconstitutional motivation and yet be reasonably unaware of a

constitutional violation. For example, an official who engages in

a series of retaliatory maneuvers designed to punish an individual

for prior speech may violate the individual’s civil rights – and

indeed has acted with unconstitutional and malicious intent in

doing so – but may not recognize the violation because governing

law did not adequately explain that such maneuvers were so

serious as to infringe on the individual’s rights. McKee v. Hart,

No. 04-1442, 2006 WL 27474, at *5-7 (3d Cir. Jan. 6, 2006).

Subjective intent may be considered in the immunity

analysis when it forms an element of the constitutional violation,

but, even in these cases, it must not be given dispositive weight.

Crawford-El, 523 U.S. at 592-93. The court must still determine

whether a reasonable person in the same position would have

recognized the infringement under “clearly established” law. Id.

2.

An infringement should be recognized by a reasonable

person when it is fairly compelled by the facts of the case in light

28

of relevant governing law. See Anderson, 483 U.S. at 640.

Existing jurisprudence must offer an adequate explanation of the

right at issue and its application in circumstances similar to those

faced by the official, such that an objective observer could

conclude, without substantial equivocation, that a constitutional

deprivation has occurred. In other words, “[t]he contours of the

right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Id.

The opinion of the majority defines the right at issue in

this case too broadly. It states that a public official in Perkins-

Auguste’s position “must conform her conduct to the

requirements of the First Amendment” and that “viewpoint-based

restrictions violate the First Amendment.” Maj. Op. at 16. These

platitudes bear no relationship to the particular circumstances of

this case and do little to define the standard governing Perkins-

Auguste’s conduct. Anderson, 483 U.S. at 640 (cautioning

against defining the applicable legal rules at too high a “level of

generality,” without consideration of the “particularized”

circumstances of the case). The majority cites to no cases

discussing whether and when a member of a legislative body may

be removed from a public meeting.

This failure is understandable, given the dearth of

precedent on the issue. Only one opinion of the Supreme Court

has involved a claim of unconstitutional retaliation in the

legislative context, see Bond, 385 U.S. at 135-37, and that case

was resolved on other grounds, see id. at 137 & n.14. Our own

discussions on the subject have been cursory, see Larsen v.

Senate of Pa., 154 F.3d 82, 94-95 (3d Cir. 1998), and have not

provided a clear archetype for analysis, see id.; see also Parker,

29

646 F.2d at 853-54. Opinions from other courts have offered

similarly limited explanations of the circumstances under which

a legislative leader may be held liable for expelling a member,

without addressing Mt. Healthy or issues of causation. See, e.g.,

Velez, 401 F.3d at 97-98; Degrassi, 207 F.3d at 645-46; Miller,

878 F.2d at 532-33.

The lack of guidance is attested further by the District

Court’s and the majority’s misunderstanding of the nature of the

right to free expression. Neither the opinions of the District

Court nor that of the majority acknowledges that an official may

defeat a prima facie claim of a First Amendment violation by

proving that the same actions would have been taken absent the

improper motive. This principle, clearly established by Mt.

Healthy and Crawford-El, eluded the District Court and

continues to elude my colleagues. A lay person could hardly be

expected to understand the contours of this right when the matter

has so confounded the federal judiciary.

Only one standard is plainly distillable from prior

decisions, such that a reasonable person should have recognized

it: a legislator may be disciplined or suspended from a public

meeting if the action is reasonably consonant with the legitimate

goals of the forum. See, e.g., Bond, 385 U.S. at 135-36; Parker,

646 F.2d at 853-55; see also Mt. Healthy, 429 U.S. at 287. This

principle is not bound to a nuanced understanding of the doctrinal

basis of a First Amendment claim or application of Mt. Healthy.

It is based, instead, on the common sense notion that the

Constitution does not prohibit expulsion of an unruly member

whose obstreperous conduct prevents fulfillment of legislative

duties.

30

3.

I cannot conclude, on this backdrop, that a reasonable

official in Perkins-Auguste’s position should have realized that

her conduct exceeded constitutional bounds. There is no doubt

that Monteiro was being disruptive during the meeting and failed

to comply with Perkins-Auguste’s rulings. He had interrupted

other members of the Council prior to Perkins-Auguste’s speech

and had been warned against such conduct. When Perkins-

Auguste started speaking, Monteiro immediately interrupted once

again. She ruled him out of order and threatened to remove him

from the meeting. He nevertheless continued to speak. She

asked the officers to remove him – not to arrest him – and yet he

persisted. She agreed to his arrest only after it became evident

that he would not leave voluntarily.

Monteiro’s repeated disruptions rendered continuation of

the meeting difficult, if not impossible. He prevented other

members from concluding their remarks and effectively blocked

a final vote on the budget proposal. His conduct was, in short,

antithetical to the legitimate goals of the forum. A reasonable

official in the same position as Perkins-Auguste could have

concluded, under existing caselaw, that the decision to remove

Monteiro was constitutionally justified, regardless of her actual

underlying intent. See, e.g., Bond, 385 U.S. at 135-36; Parker,

646 F.2d at 853-54; see also Mt. Healthy, 429 U.S. at 287. She

is thus entitled to qualified immunity. See Anderson, 483 U.S. at

638-40.

This conclusion does not cast doubt on the jury’s verdict,

or its findings that Perkins-Auguste was motivated by a desire to

31

retaliate against Monteiro and that a constitutional violation did

occur. That an official is granted qualified immunity does not

mean that he or she acted laudably or even constitutionally. To

the contrary, an official may act in a morally and legally culpable

fashion and yet be entitled to immunity if an objective observer,

in the same position, would not have recognized a constitutional

infringement. Crawford-El, 523 U.S. at 592-93; Mihos, 358 F.3d

at 105; see McKee, 2006 WL 27474, at *5-7. This legal

determination does not vitiate or excuse the constitutional

violation. It simply acknowledges that an official will not be

held statutorily liable, under 42 U.S.C. § 1983, for a

constitutional infringement of which a reasonable person would

32

not have been aware.6 See, e.g., Crawford-El, 523 U.S. at 592-

93; Harlow, 457 U.S. at 818-19.

II.

The mantle of qualified immunity will be denied to a

public official only when a reasonable person in the same

situation would have recognized a constitutional infringement.

6

The majority also suggests that Perkins-Auguste

forfeited the defense of qualified immunity by failing to file an

interlocutory appeal from the District Court’s denial of qualified

immunity on summary judgment. Maj. Op. at 3 n.1; see also id.

at 19 (“After the jury returns a verdict, judgment as a matter of

law will be granted to the defendant only if that verdict is not

based on sufficient evidence.”). This proposition is somewhat

novel, and does not find support in decisions from our circuit or

others. See Chan v. Wodnicki, 67 F.3d 137, 139 (7th Cir. 1995)

(“The trial has not made [the] claim of immunity moot, for while

the immunity is from trial as well as from judgment, by the same

token it is from judgment as well as from trial.”); Matherne v.

Wilson, 851 F.2d 752, 756-59 (5th Cir. 1988) (“There may be

good reasons why a defendant may elect to not appeal [from the

denial of qualified immunity] before trial, and we see little value

in a rule of waiver that would force unwanted appeals, many of

which undoubtedly never would have been necessary.”); see

also Wilson v. City of Boston, 421 F.3d 45, 53-54 (1st Cir.

2005); Sharrar v. Felsing, 128 F.3d 810, 830-31 (3d Cir. 1997).

At the very least, it is an open question, and one that need not be

resolved in this case, as the parties apparently agree that the

issue of qualified immunity has not been waived.

33

Perkins-Auguste’s conduct, even if violative of Monteiro’s civil

rights, was not so patently unconstitutional under existing

caselaw as to deny her immunity.

The majority concludes to the contrary. It does so based

on a fundamental misinterpretation of the relationship of

subjective intent to the First Amendment and the doctrine of

qualified immunity. This error will, I fear, have unfortunate

ramifications for our jurisprudence in these fields. I respectfully

dissent.

34