Free Letter - District Court of Delaware - Delaware

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THE NEUBERGER FIRM
A TTORNEYS AND C OUNSELLORS AT L AW

TWO EAST SEVENTH STREET SUITE 302 WILMINGTON, DELAWARE 19801-3707
WWW.N EUBERGERL AW.COM EMAIL: I NFO@N EUBERGERL AW.COM

T HOMAS S . N EUBERGER, ESQUIRE S TEPHEN J . N EUBERGER, ESQUIRE

PHONE: (302) 655-0582 FAX: (302) 655-9329

March 1, 2006 The Honorable Gregory M. Sleet United States District Court District of Delaware 844 King Street Wilmington, DE 19801 RE:

Via CM/ECF Filing

Conley v. Chaffinch, et al., Civil Action No. 04-1394-GMS Citation of Supplemental Authority Pursuant to D.Del. L.R. 7.1.2(c)

Dear Judge Sleet: Pursuant to Local Rule 7.1.2(c), plaintiff brings to the Court's attention supplemental legal authority issued by the Third Circuit which bears upon the pending summary judgment motions and which were "decided after [plaintiff's] final brief" was filed on the relevant issues. Causation On January 17, 2006, defendants moved for summary judgment. (D.I. 146-148). Their defenses included a claim that there was no evidence to meet plaintiff's causal burden. On January 31st, plaintiff filed her Answering Brief opposing the defense motion. (D.I. 153). In this brief, plaintiff responded to the defense claim. This was plaintiff's "final brief" for Local Rule 7.1.2(c) purposes. On January 31st, the Third Circuit issued its opinion in Jensen v. Potter, 435 F.3d 444 (3d Cir. 2006). This recent opinion directly bears upon several of the causation issues currently under submission. Jensen reaffirms several helpful causal propositions. First, that "[t]iming alone raises the requisite [causal] inference when it is `unusually suggestive of retaliatory motive.'" Id. at 450. Second, that because of the difficulty in determining the motivations of an individual, that a retaliation "analysis must concentrate not on individual incidents, but on the overall scenario."

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Id.; accord id. at 454. Third, even when an act standing alone has no indicia of illicit intent, when viewed in the overall context of the entire situation, illicit intent can be inferred. Id. at 451. Briefly, these holdings relate to and counter the defense assertions that there is no evidence of causation regarding plaintiff's retaliation Counts. The evidence and argument in this regard is thoroughly discussed in plaintiff's earlier briefing and there is no need to rehash that analysis here. Evidence of Gender-Based Intent On January 17th, plaintiff also moved for partial summary judgment on her Count I gender discrimination claims. (D.I. 138-39). As part of that legal argument, plaintiff discussed and analyzed the legal issue of how gender based illicit intent can be inferred from a defendant's words and actions. Because defendants waived the filing of an Answering Brief in response, plaintiff was unable to file a Reply Brief. Accordingly, plaintiff's January 17th filing was her "final brief" for Local Rule 7.1.2(c) purposes. Jensen v. Potter, 435 F.3d 444 (3d Cir. 2006), also bears on this issue. There, the Third Circuit reaffirmed its prior precedent and noted that when challenged actions are facially sexual, i.e., when it involves sexual propositions, innuendo, pornographic materials, or sexually derogatory language, an inference of sex-based intent will usually arise. Id. at 454 (internal punctuation omitted). Briefly, this holding relates to plaintiff's legal argument that illicit gender based intent can be inferred from defendant Chaffinch's words and actions both in and outside of the workplace. The evidence and argument in this regard also is thoroughly discussed in plaintiff's earlier briefing and there is no need to rehash that analysis here. Qualified Immunity Lastly, as discussed above, defendants moved for summary judgment on January 17th. Another of their defenses was a claim of entitlement to qualified immunity. On January 31st, plaintiff filed her Answering Brief opposing the defense motion. (D.I. 153). In this brief, plaintiff responded to the defense claim. This was plaintiff's "final brief" for Local Rule 7.1.2(c) purposes. Subsequently on February 8th, the Third Circuit issued a qualified immunity opinion in the free speech context in Monteiro v. City of Elizabeth, ­ F.3d ­, 2006 WL 288122 (3d Cir. 2006). This recent opinion directly bears upon the qualified immunity issues currently under submission. A copy of that opinion is attached to this letter. In Monteiro, the Third Circuit held that when there is a factual dispute as to whether a 2

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public official is motived by illegal or legal reasons in taking an action against an individual in response to the exercise of that person's free speech rights, this factual dispute must be resolved by the jury before the Court rules on the qualified immunity defense. Id. at *6. The Circuit explained that 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. Id. Thus, if [defendant] acted with an intent to suppress [plaintiff's] speech ... []he 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. Id. (internal punctuation omitted) (emphasis added). Briefly, this recent binding Third Circuit authority relates to the qualified immunity issue as follows. Plaintiff Capt. Conley asserts that defendants released her internal affairs information to the Delaware media in retaliation for the exercise of her free speech and petition clause rights. In other words, that they had illegal and `impure' motives. Defendants claim that instead, they released plaintiff's internal affairs information for other legal or `pure' reasons. To the extent defendants claim that qualified immunity is somehow a live issue in this case, at the very least there is a fact dispute as to what defendants' motivations were in releasing this information.1 As a result, if the Court decides that qualified immunity is an open issue, it cannot be decided at summary judgment due to the fact dispute over defendants' motives. If the jury finds that defendants' motives were impure, than qualified immunity must be denied because "it can never be objectively reasonable for a government official to act with the intent that is prohibited by law," id., here, the intent to violate plaintiff's First Amendment rights.

Respectfully submitted, /s/ Stephen J. Neuberger Attorney for Plaintiff enclosure

As discussed in plaintiff's summary judgment opening brief, plaintiff believes that in light of the overwhelming causal evidence this case has revealed, there is no factual dispute that defendants acted for illicit reasons and that no reasonable jury could conclude otherwise. 3

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cc:

Thomas S. Neuberger, Esq. (via CM/ECF) Ralph K. Durstein, Esq. (via CM/ECF) Stephani Ballard, Esq. (via CM/ECF) James E. Liguori, Esq. (via CM/ECF)

Conley \ Letters \ Sleet.10

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On ly the available.

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United S tates Court of App eals, Third Circuit. Armenio T. MONTEIRO v. CITY O F ELIZA BET H; Pa tricia Perkin s-Au gus te, Cou ncil Presid ent; Andrew R. Cox, Police Officer; Richard Meola, Sergeant of Police Patricia Perkins-Auguste, App ellant. No. 04-3756. Argued Oct. 25, 2005. Feb. 8, 2006. O n A pp ea l fro m the United S tates District Cou rt for the District of New Jersey, (D.C. No. 0 1 - c v -0 1 8 4 4 ), D is t ri c t J u d g e: Honorable Jose L. Linares. Robert F. Varady (Argued), LaCorte, Bundy, Varady & Kinsella, Union, NJ, for App ellant. David F. Corrigan (Argued ), Keyport, NJ, for Appellee. Before SLOVITER, FISHER, and ROSENN, [FN*] Circuit Judges. FN* The H onora ble Ma x Ro sen n, S r. subm itted this opinion to the Clerk 's office for processing on February 2, 2006. Prior to the filing of the opinion, Judge Rosenn passed away. ROSENN, Circuit Judge.

*1 This appeal presents the issue of wh ether, wh en en titlem ent to qualified im m unity depen ds on a disputed issue of fact, it is proper to su bm it that q uestion to a jury. Plaintiff Armenio T. Monteiro filed an action und er 42 U.S.C. § 1983 against defendant Patricia Perkins- Au gus te, allegin g that when he was a member of the Elizabeth, New Jersey C ity Cou ncil, Perkins-Auguste, then President of the Council, violated his First A m end m ent righ ts by ejecting him from a public meeting of the C ou ncil a nd ha vin g h im arrested on a disorderly persons charge on the basis of his viewpoint. Perkins-Auguste asserted that she was entitled to qua lified im m unity and mov ed for summary judgment on that ground. Her motion for summary judgment was denied on the basis that whether she was entitled to qualified imm unity depended on a dispu ted issu e of m aterial fact-whether she had Monteiro ejected from the meeting on the ba sis of view poin t. The Dist rict Co urt subm itted the disp uted factual q uestion to the jury, which returned a verdict for the pla intiff, Monteiro, awarding him $10 ,000 in com pen sato ry dama ges. The jury also awarded Monteiro $750 in punitive dam ages, finding that Perkin s-Au gus te had acted recklessly an d w ith call ous indifference to Monteiro's rights. Perkin s-Au gus te mov ed for judgm ent as a matter of law followin g 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 tim ely appealed. We affirm the judgment because we find no error in the proceedings. The jury's verdict is based on sufficient

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evidence. I. Perkins-Auguste challenges the denial of judgment as a matter of law, [FN1] the subm ission of punitive dam ages to the jury, and the admission of two items of evidence. Perkins-A ugu ste argues that the District Cou rt erred in denying her m otion for judgment as a matter of law on the grounds of qualified imm unity beca use a reason able official in her p osition wou ld no t have understood that ejecting Monteiro from the meeting violated his First Amendment rights. She further argues tha t the District Court erred in submitting the question of punitive damages to the jury because Mo nteiro had presented no evidence that she acted in tentionally or delibe rately to violate his constitu tiona l rights. Perkins-A ugu ste also argues that it was substantial error for the D istrict Cou rt to adm it eviden ce of Mo nteiro's acq uittal, in municipal court, of the disorderly persons charge, and a City Legal Department Mem orandum of Law outlining the procedures to be follow ed by a Cou ncil Presiden t in eje cting an un ruly m em ber. FN1. Perkins-Auguste styles her appeal as an app eal of the District Co urt's denials of her motion for sum m ary jud gm ent before trial, her motion for judgmen t 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 verd ict. We note th at it is not clear what rights, if any, Perkin s-Au gus te r e ta i n e d to challenge the leg al dete rmin ations the trial judge m ade at su m m ary judg m ent, which she did not ap peal. If she retain ed a rig ht to raise a legal question, was that right limited to legal errors made at trial and the

sufficiency of the evid ence to sup port the jury's verdict? Or did it continue to extend to the legal questions twice raised in the motions for summary judgment and certification un der 28 U.S .C. § 1 2 9 2 ( b ), and t w ic e d ec i d ed adv ersely to the Defendant? The S up rem e Court has strongly urged that the legal question of qualified im m unity be de cided before trial in order to preserve its protections. Saucier v. Katz, 533 U.S. 194, 200-201 (2001); Mitch ell v. Forsyth, 472 U.S. 511, 525-526 (1985). Qualified imm unity is " 'an imm unity from suit rather than a m ere defense to liability; and like an abso lute imm unity, it is effectively lost if a case is erroneously permitted to go to tria l." ' Sa ucier, 533 U .S. at 200-201 (quoting Mitch ell, 472 U.S. at 526). We treat her appeal as an appeal of her motion for judgment as a matter of law. II. On A pril 10 , 200 1, the Eliz abeth City Cou ncil convened for the purpose of considering the City's proposed annual bud get. Perkins-Auguste was, at that time, President of the Coun cil and the officer in charge of presiding over the meeting. The meeting was unusually well-attended, with app roxim ately 300 mem bers of the com m unity in th e audience. The meeting was taped and broad cast by a local ca ble station. The members of the Cou ncil spoke in turn ab out th eir views on the proposed bud get. *2 Monteiro expressed at length his strong objections to the b udg et, exercisin g his constitu tion al right to p etition th e government on behalf of him self and his constituents. After some discussion from

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other councilpersons, Perkins-Au gus te began to speak. Rather than address the m erits of the budget, however, she im m ediate ly leveled a pointed attack at Mo nteiro for wh at she perceive d to be his role in the distribution of a pamph let protesting the budget and inviting citizens to attend the meeting. The tape reveals that Perkin s-Au gus te 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 Cou ncil because they're going to be charged add ition ally 600 an d 800 dollars for owning a home in the City of Elizabeth, this is deception, Councilman Mo nteiro, w ith you r nam e on it. Monteiro interrupted her: "You're bringing up m y n am e. You can't bring u p m y n am e and then sit there and ...." he began. Perkin s-Au gus te swiftly ruled him out of orde r, pounding her gavel. Mo nteiro continued to try to defend himself, and Perkin s-Au gus te continued to pound her gav el. Perkins-Auguste then asked two mun icipal officers, who were acting as sergeants-at-arm s, to remove Monteiro from the meeting. As the officers a pp roached Mo nteiro, Perkins-Au guste contin ued h er remarks: As I was sta ting, th is is decep tion, when Cou ncil m em bers put this type of propaganda throughout the community, when you state there's a 600, an 800 dollar tax increase. My taxes, I own a h om e in this city, my taxes ov er the last t w o and three yea rs only w ent up twenty-five, thirty dollars for th e en tire yea r. So I don't know where you guys are coming off with a thousand dollars, 600 dollars, 800 dollars tax increase. Get the facts straigh t. If you don't want to vote for the bu dg et, don't vote for the budget, but

do not lie to the g enera l popu lation . This is disgusting. If you wa nt peo ple to co me 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: "We ll, we'll wait for the bills to come out." In re sponse, Perkin s-Au gus te exclaimed: "This man cannot keep his mou th shut," and once again asked tha t he b e rem oved. M onteiro responded that he would not voluntarily leave the meeting, and that, if she wished to have him rem oved , she w ould have to have him arrested. As the officers asked Monte iro to step out from his seat, one mem ber of the Co unc il advis ed that they shou ld "ask for a leg al op inio n on this," and that "there are rules an d regu lation s in our code that we can ado pt rig ht n ow ." Perkin s-Au gus te did n ot app ear to con sult or follow any establishe d proce dure in ejecting Monteiro. The evidence introduced at trial reveals that there were at least two possib le proced ures av ailable to her under the City C ou ncil's governing rules. The rules required that the Council vote on the matter of a coun cilperson 's remov al. [FN2] No vote was taken. M onteiro w as ad vised b y a City Attorney that he was required to abide by the orders of the Council Presiden t, to which he responded, "I apologize, I understand tha t." Soo n th erea fter, Perkins-A ugu ste called a five-m inute recess. FN2. A lega l me m orand um of the City L aw De pa rt me n t, date d Septemb er 26, 2 000 , less than a year before the April 10, 2001 meeting, states: "The Rules of Proce du re do not provide a specific remedy availa ble to the City C oun cil President if a mem ber fails to com ply with the orders of the President after being ruled out of order repeated ly." The memorandum

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notes, how ever, that the City Rules incorp orate Rob ert's Ru les of O rder, wh ich pro vide th e auth ority to eject an unruly member. The mem orandum concludes: "Therefore, it is our opinion that if a membe r of the C ity Cou ncil repea tedly refuses to co m ply w ith the orders and rulings of the President, the member ... may be ejected ... by vo te of a m ajority of those Council members present and votin g." In addition, the Rules provide that "[a]ny person wh o sha ll distu rb the peace of the Co unc il, make imp ertinent or slanderous remarks or conduct himself in a boisterous ma nne r wh ile addressing the Council shall be forthw ith barred by the presiding officer from further audien ce before the Co unc il, except that if the speaker shall su bm it to proper order under these rules, permission for him to continue m ay be granted by a majority vote of the Cou ncil." *3 Wh en th e Cou ncil recon ven ed, M onteiro was still sitting in h is Co un cil ch air. Perkin s-Au gus te immediately asked the officers to escort M onteiro o ut of the meeting. They replied that they could not do so un less h e w as forma lly placed under arrest. After som e vacilla tion, Perkin s-Au gus te agreed. She instructed the officers to pla ce M onteiro u nd er arrest and rem ove h im from the m eetin g. Th e 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 min utes. Not one Council mem ber 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

me etings. It was d isgrace ful, and I wou ld not put m y Coun cil colleagues in it in term s of havin g them vote on it. That's a decisio n the President must make, and I am sad dened b y it, b eca use I believe in free speech and I believe in representation. She then raised a copy of the offending pamphlet and co n ti n u ed her quasi-prosecutorial attack in a m ore aggressive tone : But when you have Council people who allow this typ e of propa gan da to go out with their name on it to lu re City resid ents up into Council m eetings, 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 percen t, if any, in an y of those given yea rs. Twenty-five dollars here, maybe seven ty or fifty do llars here, noth ing m ore. W e all hate to ra ise tax es, bu t 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 w e mu st realize, it's a reality in the United States of Am erica. 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 Co unc il represen tatives is to allocate funds to run th e City, to investigate, and to appropriate. And if we cannot do th at in a d ecent, ord erly man ner an d re spect on e ano ther's pos ition s, then w e're jus t all for w aste . Again, my colleagues, I apologize to you, but he left m e with no de cision but to have him to be rem oved . Cons tantly interrupting throug hou t the en tire meeting, con stan t wa rnings. I have a two- and -a-h alf 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

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thrown out of here, stop. There comes a point in time when you must act, and again, I apolog ize to all th ose who witnessed this, you in the audience, I apologize but he left me no other choice. I cannot allow my colleagues to overrun the m eetin gs ju st to m ake a po int. And I was so up set wh en I saw this [pam phle t] out in the pe ws to get peop le to com e up to the m eetin g, 600, 800 dollars. Tha t is not h ow y ou g et peop le to be inform ed. Th is is scare tactic s. His nam e is on it, he allow ed it. *4 As a result of his removal from the meeting, Mo nteiro w as d eprived of his opp ortun ity to vote on th e budget. He was also charg ed w ith disru ption of a pub lic meeting in violation of New Jersey law, but sub sequ ently found not guilty of the offense in m unic ipal cou rt. [FN3] FN3. The offense of "disrupting meetings and p rocessions" is defined as follows: A person com m its a disord erly persons offense if, with purp ose to prevent or disrup t a lawful meeting, procession or gathering, he does an act tending to obstruc t or int erfere wit h it p hys ically. N.J. STAT. AN N. § 2C:3 3-8. Mon teiro filed a civil suit again st the City of Elizabeth, the police officers who rem oved him from the City Council Meeting, and Perkin s-Au gus te in her capacity as President of the City Council. He asserted various state la w cla im s a nd cla im s un der 42 U.S.C. § 1983 for violations of his First Am end m ent, Fourth Amendmen t, and due process rights. Monteiro's claims against the City and the police office rs we re disposed of by voluntary dism issal a nd on su m m ary judg m ent, as w ere m ost of h is cla im s against Perkins-Au guste. The D istrict Cou rt

denied Perkins-Au guste's motion for sum m ary judg m ent on Mon teiro's claim under § 1983 for violation of his First Am endm ent rights. Perkins-Auguste argued in her motion for sum m ary judgment that she w as en titled to qualified immunity on Monteiro's First Amendment claim . The D istrict Court disagreed, how ever, finding that whether she wa s entitled to qualified im m unity depended on th e disp uted question of her m otivation for ejecting Mon teiro from the meeting. The District Court held that the First Am en dm en t protected Mon teiro's right to speak on pu blic issues a t a pu blic meeting and from adverse actions taken by officials presiding over the meetings. The District Court found that the co unc il meeting wa s a lim ited pu blic fo ru m , subject to reasonab le tim e, place, manner restrictions on speech. Th e Di strict C ourt noted that in order to satisfy the First A m en d m e n t , tim e, pl a ce , manner restrictions mu st be view poin t-neu tral, narrow ly tailored to serve a significant governmental interest, and m ust leave open am ple a l te rn a t i v e cha nn els for communication. The Dist rict Co urt found that provisions of the City of Elizabeth 's Ru les of P roced ure forbade Council mem bers from delaying or interrupting proceedings and allowed the presiding officer to bar u nru ly m em bers "except that if the speaker shall subm it to proper order under these rules, permission for him to contin ue may be granted by a m ajority vote of the Cou ncil." The District Cou rt held th at these pro visio ns w ere facially valid tim e, pla ce, m a n n er r e st r i ct io n s because they were view poin t-neutral, narrow ly tailored to serve the significant governmental interest in cond uctin g orde rly and efficient meetings of a public bodies, and left open ample

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alternative channels of communication. But the District Court concluded that the factual record raised a disputed qu estion of fact whether Monteiro was silenced by Perkin s-Au gus te based on his views on the budg et or her need to m aintain order: [A] fact find er he arin g th e his tory between the p arties , the w ords tha t we re actua lly said at the meeting, and viewing Plaintiff's conduct as shown in the videotape, could reason ably conclude that the Plaintiff was not being disruptive and that Ms. Perkins-Aug uste 's actio ns w ere motivated by her an tip athy to P laintiff's particular outspoken views on the budget and his alleged sponsorship of the "offensive" flier tha t attacked the city's bu dg etary proposals. Indeed, prior to the even t, Defend an t w as aw are of Plaintiff's view and knew that he was going to vote and argue against the budget. Therefore, m aterial questions of fact exist as to whether Defen dan t's motiv e for acting against Monteiro resulted from the content of his spee ch (con stitution ally impermissible) or was an appropriately-limited time, place and man ner restriction (co nst itution ally perm issible). A ration al jury could infer that Defendant Perkins-Auguste singled Plai ntiff out because of the conten t of his speech, or that she was merely trying to m aintain order for the efficie n t ad m inis tra t i o n of her l e g i s la t iv e respons ibilit ies. *5 Mo nteiro v. City of Elizabeth, No. 01-1844, at 22-23 (D .N.J. Nov. 12, 2003 ). The District Court further concluded that the availa bility of qualified imm unity depended on this dispu ted issue of fact: If Ms. Perkin s-Au gus te's mo tivation in removing Mr. Monteiro was her an im osity towards him and the desire to stifle h is vi ew on th e b u d ge t, th e n Ms. Perkin s-Au gus te as a reasonable pu blic official would have known that her spe cific

condu ct violated the Plaintiff's clearly established rights and was not subje ct to qualified imm unity . 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 p e r h ap s t h ro u gh the u se of a s p e c i f ic a l l y - t a il o r e d jury verd ict questionnaire, it wou ld be im prope r to d eterm ine this m atter v ia su m m ary jud gm ent. Id. Accordingly, the District Co urt concluded t h at the q u es ti o n of Perkins-A ug uste's motivation in ejecting Mon teiro from the meeting was a disputed issue of material fact for the jury to decide, p r ec lu d i ng summary j u d gm e nt on Mon teiro's First Amendment claim against Perkins-Auguste. III. We revi ew a denial of judgm ent 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). Judgme nt as a matter of law is only app ropria te if "th ere is no legally sufficient evid entiary b asis for a reasonable jury to find for [the moving] party on that issue." Fed.R.Civ.P. 50(a)(1). The doctrin e of qua lified im m unity protects government officials from civil dam age su its for official cond uct tha t does n ot violate clearly established law of which a reason able person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qua lified im m unity " 'gives am ple room for mistaken judgm ents' by protecting 'all but th e plain ly incom peten t or those who know ingly vio late the law ." ' Hunter v. Bryan t, 502 U.S. 224, 229 (1991) (quoting M alley v. Briggs, 475 U.S. 335, 341, 343 (1986)). It is clearly established that when a pub lic

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official excludes a elected representative or a citizen from a public meeting, she m ust con form her con duc t to the requ irem ents of the First Am end m ent. See, e.g., Eichenlaub v. Tw p. of In d., 385 F.3d 274, 281 (3d Cir.2004) (applying public forum ana lysis to town ship official's curtailin g of alleg edly disruptive speech at a public me eting); Collinson v. Gott, 895 F.2d 994, 995, 999 (4th Cir.1990) (removal of citizen from pub lic me eting of coun ty comm issioners for interruptions and trucu lence); Jones v. Heyman, 888 F.2d 1 328 , 132 9 (11 th Cir.1989) (mayor's silencing and removal of citizen from public m eetin g for d isruptive behavio r); Musso v. Hourigan, 836 F.2d 736, 739 (2d Cir.1988) (sc ho ol b oard's removal of citizen from public meeting for disruptive beh avio r). It is also clea rly established that content-based restrictions on speech in a pu blic forum are sub ject to strict scrutiny, while viewpoint-based restrictions violate th e First Amendment regardless of whether they also serve some valid time, place, manner interest. See, e.g., Good New s v. M ilford Cent. Sch ., 533 U.S. 98, 106-107 (2001); Rosenberger v. Rector & Visitors of U niv. O f Va., 515 U.S. 819, 829 (1995); Lam b's Chapel v. Ctr. Moriches Un ion F ree S ch. D ist., 508 U.S. 384, 392-393 (1993). *6 Thus, if Perkins-Auguste acted with an intent to suppress M onteiro's speech on the basis of viewpoint, she violated clearly established law a nd is n ot entitled to qualified immunity. In cases in which a constitutional violation depends on evidence of a specific intent, "it can never be objectiv ely reaso nable fo r a government official to act w ith the inten t that is prohibited by law ." Locu rto v. Sa fir, 264 F.3d 154, 169 (2d Cir.2001). Accordingly, the District Court did not err in holding that whether Perkins-A ug uste's conduct violated clearly established law depended upon her

motivation for ejecting Mon teiro from the m eeting. Furth erm ore, it was not error to subm it this question to the jury because there was sufficient evidence from which a reason able jury could conclude that Perkin s-Au gus te acted w ith a m otive to sup press M onteiro's vie wp oint. Although qualified immun ity is a question of law determined by the Cou rt, when qualified immu nity 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 im m unity may turn on disputed issues of fact); Ka rne s v. S kru tski, 62 F.3d 485, 491 (3d Cir.1995) ("While the qualified im m unity defense is frequently determined by courts as a m atter of law , a jury sh ould decide disputed factual issues relevan t to that determination."). Motive is a question of fact that m ust be decid ed by the jury, wh ich has the opp ortunity to hear the explanations of both parties in the courtroom and observe their dem ean or. See Mitch ell 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 wh ich a reasonable jury cou ld conclude that Perkins-Auguste acted with a motive to supp ress M on teiro's speech based upon his opposition to the b ud get. T he ju ry saw the v ideo tap e of th e m eetin g an d heard the stridency of Perkins-Au guste's ad hom inem attack on Mo nteiro. W hile Mo nteiro was arguably disrupting the proceedings by interrupting her, he was also defen ding him self from a pe rson al attack . [FN4] It was Pe rkins-A ugu ste who changed the tone of the m eeting from a deb ate about the merits of the budget to a quasi-prosecutorial forum.

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FN4. Recall the w ord s of Ia go in Othello: "Who stea ls m y purse ste als trash .... But he that filches from m e m y good nam e / Robs me of that wh ich not enriches him, / And mak es me poor indeed." William S h a k e s p e a r e , Ot he llo (3.3.1807 -1811 ). Monteiro reminded Perkins-Auguste that his constitutional rights were at stake, stating: "I am not leaving Ma dam Presiden t. It's a violation of my civil rights. It's a violation of m y First Am end m ent righ ts." Perkin s-Au gus te demonstrated her own awareness when she apologized to the audien ce for ejecting him: "I am saddened by [the ejection], because I believe in free speech and I believe in representation." She adm itted at trial to ha vin g kn ow ledg e of a law mem orandu m of the City of Elizab eth Legal Dep artm ent settin g forth a pro cedure for ejecting un ruly m em bers. See supra note 2. The speed with which she determined to eject Monteiro from the meeting, her failure to consu lt her fellow coun cil m embers or to negotiate any comprom ise, and her failure to follow any established procedure could be viewed by a reasona ble j u ry as e v id e n ce th at Perkin s-A ug uste's beh avior w as em otionally charged and motivated by anger and personal animosity, rather than a desire to m ainta in smooth operation of the meeting. Desp ite the calm in the meeting room after the recess, Perkin s-Au gus te persisted in having Mon teiro removed , in handcu ffs, aga inst his will. *7 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 sup press M on teiro's speech on the basis of viewpoint. Qualified

im m unity does n ot requ ire a plain tiff to dem onstra te that the official's conduct was not reasonable under any conce ivab le set of circum stances. See Crawford-El v. Britton, 523 U.S. 574, 593-594 (1998) ("[T]he policy conce rns un derlying Harlow do not sup port Justice Scalia's unprecedented proposal to imm unize 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 inten t, it is sufficient for th e plain tiff to "ide ntify affirmative evidence from which a jury could find ... the pe rtinen t mo tive," in order to survive summ ary judgmen t on that issue. Cr aw ford -El, 523 U.S. at 600. After the jury returns a verdict, judgm ent as a matter of law will be granted to the defendant only if that verdict is not based on sufficie nt ev iden ce. Fed.R.C iv.P . 50(a)(1). In conclu sion, the District Co urt did not err in denying Perkins-Auguste's motion for judgment as a m atter of law . In its opinion denying the motion, the District Co urt noted that the jury found that the Defendant had an unconstitutional motivation for ejecting Plai ntiff from th e City Council meeting, thereby violatin g Plain tiff's rights under the First Am end m ent. Upon reviewing the evidence in the light most favorable to the Plai ntiff, the District Court found that sufficient evidence existed to support the jury v erd ic t. W e see no error by the District Cou rt. IV. Perkins-Auguste also co mplains that the District Cou rt committed substantial error in admitting evidence of Mon teiro's acqu ittal in municipal court of the disorderly persons charge and a mem orandum of law from the City Law Department pertaining to the pro cedure to be followed in ejecting an

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unru ly mem ber of City Counci l. We review evid entiary rulings for abuse of discretion. Ab ram s v. Ligh tolier, 50 F.3d 1204, 1213 (3d Cir.1995). The District Court rejected these objecti ons wh en it de nie d Perkins-A ug uste's motion for a new trial. The District Court admitted the evidence of Mon teiro's acquittal in the municipal cou rt as evidence of dam ages because the bulk of Mon teiro's $10,000 dam age aw ard wa s a $5,000 claim for attorney's fees he incurred defending himself. The District Court provided a specia l c o m p r e h e nsiv e instruction bala ncin g the in terests of both parties. The import of the acquittal, the court noted, was narrowly confined by the instruction. As for the mem orandum of the City's attorney's, the District Court wrote: The me m o set forth a legal opinion which provided specific instructions on the proper course of action in case a Cou ncil mem ber b eca m e unru ly. Perkin s-Au gus te adm itted to ha vin g kn ow ledg e of the existence of this memo prior to the Cou ncil m eeting in dispute and adm itted that she d id not h eed that advice in that m em oran du m . *8 M onteiro v. City of Elizabeth, No. 01-1844, at 10 (D.N.J. Sept. 1, 2004). The cou rt concluded that the mem orandum provided high ly prob ative circumstantial evidence that th e ejection of the P lain tiff was not based solely on his alleged disruption "but was motivated by the content of his speech ." We agree a nd h old that the D istrict Cou rt did no t abu se its discretion in admitting these two items of evidence. Abram s, 50 F.3d at 1213 (3d Cir.1995). The D istrict Cou rt also rejecte d Perkins-A ug uste's claim that it erred in submitting the question of punitive dam ages to the jury . We se e no error w ith respect to the $ 750 pun itive dama ges award. "Wh ether th ere is sufficient evidence

to support pu nitive dam ages is a question of law w hich we review de novo." Alexander v. Riga, 208 F.3d 419, 430 (3d Cir.2000). The evidence outlined above am ply sup ports the jury 's conclusion that Perkin s-Au gus te acted recklessly and wit h callous indifference to Plaintiff's rights in having him removed from the meeting. Therefore, the punitive dam ages aw ard w ill not be vacated. V. For the foregoing reasons, the judgm ent of the District Court is affirmed. Costs taxed aga inst ap pellan t. FISHER, Circuit Judge, dissenting. FISHER, Circuit Judge. The majority characterizes the jury's finding of improper intent as the dispositive inq uiry in as sessi ng both the e xiste nce of a constitutional violation and entitlem ent to qualified immunity. This reflects, in my view, a fundamental misunderstanding of the relationship of motive to the First Amendment and the d octrin e of qualified im m unity . I respectfully d issent. I. Borne of jud icial con cerns ov er the deleterious effect of litigation on the wo rk of pub lic officials, qualified imm unity protects those who overstep c o n st it u ti o na l boundaries but neve rtheless act in objective good faith . Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). An official m ay no t be held statutorily liable for a constitutional violation un less a reasonable person in the sa m e position, with the sam e facts, wo uld have un derstood that he o r she was infringing on the in divid ua l's civil rig hts. Id. Inherent in this stan dard are two separa te inquiries. The court mu st first determine, as

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a factu al m atter, w hether th e reco rd demon strates a con stitu tion al in fringem ent. Disputed issues of historical fact, if relevant to the substantive elements of the alleged deprivation, must be submitted to the jury for resolu tion . E.g., Curley v. Klem, 298 F.3d 271, 27 8 (3 d C ir.2002). On ly if a violation is esta blish ed m ust th e cou rt determine, as a lega l m atter, w hether a reason able person would have recognized that viola tion . Resolution of this question depends up on the co urt's application of the facts of the case to "clearly established" law. E.g., Harvey v. Plains Tw p. Police Dep 't, 421 F.3d 185, 194 n.12 (3d Cir.2005). A. The lea der of a legislati ve meeting, like a pub lic employer or owner of a lim ited pu blic fo ru m , is constitutionally entitled to impo se limitations on the expressive rights of participants in order to facilitate the legitim ate goals of the gathering . Parker v. M erlino, 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 lim ited on the basis of time, place, and manner--and even content; however, it may not be restricted on the basis of view poin t. Park er, 646 F.2d at 853-54; see also Rosen berg er, 515 U.S. at 828-30; Brennan, 350 F.3d at 412-13. So long a s legislators com ply with procedural rules and speak on top ics with in the scope of the meeting, they enjoy an abso lute right to express their views without restraint and with out fear of subsequent retaliation. A leader w ho preven ts a mem ber from speak ing or pun ishes a mem ber for prior speech based on his or her viewpoint has in frin ge d on the m em be r's First Am end m ent righ ts. Park er, 646 F.2d at 853-54; see also Bond v. Floyd, 385 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. T ow n of Hu ll, 878 F.2d 523, 532-33 (1st Cir.1989). *9 But, even if retaliatory m otive is established, the leader may yet escape liability by de m onstra ting that there is no causation between the improper intent and the restrictions on the leg islator'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 mo tive is no t sufficient to establish a constitutional vio latio n-- there mu st 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 h arm , precluding succ ess on th e claim . See , e.g., Texas v. Lesage, 528 U.S. 18, 20-21 (1999). No one would argue, for example, that an in dividu al exclu ded from a pub lic forum would have a bas is for recovery if the decision to deny access was compelled by two ind epe nd ently op erating regula tions, one of which was viewpoint-biased and one of which wa s viewpoin t-ne utra l. A restriction imposed as a result of improper intent will not give rise to liability if the same restriction would have been im posed otherwise. Mihos v. Sw ift, 358 F.3d 91, 105 (1st Cir.2004) ("[A] defen dan t mig ht prev ail ... in a case alleging an intent-based constitutional tort, w itho ut n eed to inq uire as to her motives, if ... the defendant showed that she would have reached the sa m e decision even in the absence of the em ployee's protected speech .") (citing Cra wford -El, 523 U .S. at 592-93 ). The opinio n of the majority does not address, and p resum ably rejects, this prem ise, wh ich ha s been recogn ized in a

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series of Sup rem e Cou rt decisions, including Mt. Health y City S choo l District Board of Education v. Doyle, 429 U.S. 274 (1977), and Crawford-El v. Britton, 523 U.S. 574 (1998). It assum es instead th at the ju ry's fi n d in g of unco nstitu tiona l m o t iv e demon strates, beyond cavil, the existence of a constitutional violation. It does not discuss wh ether, ba sed on his repe ated disruptions and noncom pliance with procedural rules of the Cou ncil, Mo nteiro would have been ejected from the meeting even if Perkins-Auguste had not harbored an inten t to punish h im for his view s. Perhaps the majority's reluctance to confront the issue stem s from the D istrict Co urt's failure to in struct the jury on this point. D e s pi te e vi d en c e t h at Perkins-Augus te would have expelled Mo nteiro from the meeting regard less of his previou sly expressed opinions, the jury was not instructed on this asp ect of causation analysis and never made a finding on the sub ject. Perkins-Auguste did not ob ject to this omission during trial, and has n ot raised it on appeal, and we are thus constrained to assume that the jury was prope rly cha rged . See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993) (noting that issues not raised on app eal are aban doned ). Nevertheless, because ca usation constitutes an essential aspect of Monteiro's claim, and because Perkin s-Au gus te argues the matter in her briefs, we mu st con side r wh ether a finding of causation would have been supported by the evidence. *10 The issue presents a close question. Mo nteiro spoke ou t of turn during the m eet in g and repeate dly in terjected com ments during Perkin s-Au gus te's speech. [FN5] 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 lea der, w ou ld ha ve ta ken th e sa m e actions regardless of an intent to retaliate against Monteiro. FN5. I will not quibble with the m ajority opinion's recitation of facts except to note that som e of its characterizations of the record-particularly the c h a rg e s t h at Perkins-A ugu ste " i m m e d i a t e ly leveled a pointed a ttack at Monteiro" and "changed the tone of the meeting from a debate about the m erits of the budget to a quasi-prosecutorial forum," Maj. Op. at 5, 9, 18--are less historical than hyp erbolica l. However, because the burden of proof on this issue lies w ith P erkin s-A ug uste , see Mt. Healthy, 429 U.S. at 287, and the record does not com pel a finding in h er favo r, I will a ssu m e that the jury could have reason ably found --if given the opportunity--that the sa m e actions would not have been taken in the absence of imp roper inte nt. This conclusion, considered w ith the findings that Mo nteiro eng aged in protected speech and that Perkins-Au guste acted with retali atory intent in suppressing his speech, demon strates that a constitutional violation occurred. B. The se cond stage o f the qu alified im m unity analysis is whether, given the existence of a constitu tional violation , a reason able person should have recognized it under "clearly established" law. The hypothetical "reasonable person" is an objective obs erver, who is aware of the facts known to the official but possesses an independent knowledge of governing legal prece pts. See Harlow, 457 U.S. at 806. Only wh en these rules clearly forbid the actions taken by the

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official will im m un ity be denied. Anderson v. Creighton, 483 U.S. 635, 640 (1987). 1. Subjective inten t plays a lim ited 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 m otive does not preclude qua lified im m un ity. Gran t v. City of Pittsbu rgh, 98 F.3d 116, 124 (3d Cir.1996). An official who has committed a constitutional violation, even one evincing improper intent, will nevertheless be im mune from liability if an objective observer in the same position, given the sa m e facts and knowing of the official's improper m otive, would not have recognized a constitutional violation under clearly establish ed la w. Mihos, 358 F.3d at 105 ("[A] defendant might prevail ... in a case alleging an intent-based constitutional tort, w ithout need to inquire as to her motives, if ... the relevant law was not clearly established ....") (citing Cra wford -El, 523 U .S. at 592-93 ). The opinion of the majority holds to the contrary. It concludes that proo f of a motive-based constitu tiona l tort is itself sufficient to bar immunity, regardless of the clarity (or obscurity) of the violation under existing law. T his position is sum m arized in a quo te from the Co urt of Ap peals for the Second Circuit, on which the m ajority relies: "[W ]he re ... specific intent is actually 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 th at is prohibited by la w." Locurto v. Sa fir, 264 F.3d 154, 169 (2d Cir.2001). *11 The flaw in this approach has been recognized by the Suprem e Court: "[Proof of] unco nstitutiona l mo tive [w ill not]

auto m atically carry[ ] a plaintiff to trial ... [if there is] dou bt as to the illegality of the de fen da nt 's partic ula r con du ct...." Cra wford -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 engag es in a series of retaliatory ma neuve rs designed to p unish an indiv idua l for prior speec h m ay viola te the individual's civil rights--and indeed has acted with unconstitutional and malicious intent in doin g so--b ut m ay no t recogn ize the violation because governing law d id not adequate ly exp lain that such m aneuv ers we re so serious as to infringe on the individ ua l's righ ts. McK ee v. Ha rt, No. 04-1442, 2006 WL 27474, at *5-7 (3 d C ir. Jan. 6, 2006). Subjective intent may be considered in the im m unity ana lysis when it forms an element of the constitution al viola tion, bu t, even in these cases, it must not be given dispositive weig ht. Cra wford -El, 523 U.S. at 592-93. The court must still determ ine wh ether a reason able person in the same position wou ld have recognized the infringement un der "c learly establish ed" law . Id. 2. An infringement should be recognized by a reason able person wh en it is fairly compelled by the facts of th e case in light of relevant gov erning law . See Anderson, 483 U.S. at 640. Existing jurisprudence mu st offer an adequate explanation of the right at issue and its app lication in circumstances similar to those faced by the official, such that an objective observer could conclude, without subs tantia l equiv ocation , that a constitutional deprivation ha s occurred . In other words, "[t]he contours of the right mu st be su fficiently clea r that a reason able official wou ld un derstan d tha t wh at he is doing v iolates that right." Id.

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The opinion of the majority defines the right at issue in this case too broad ly. It states that a pub lic o f f ic i a l in Perkins-A ug uste's position "m ust confo rm her cond uct to the requirements of the First Am end m ent" and that "viewpoint-based restrictions violate th e First Am end m ent." Ma j. Op. at 16. These platitudes bear no relation ship to the particular circumstances of this case and do little to define the stan da rd governing Perkins-Auguste's cond uct. Anderson, 483 U.S. at 640 (cautioning against definin g the a pplica ble legal rules at too high a "level of gen eralit y," withou t consideration of the "particularized" circumstan ces of the case). The ma jority cites to no cases discussing whether and wh en a mem ber of a legislative body may be rem oved from a pu blic meeting. This failure is understandable, given the dearth of precedent on the is sue . Only one opinion of the S up rem e Court has involved a claim of unco nstitu tiona l retaliation in the legislative con text, see Bond, 385 U.S. at 135-37, and that case was resolved on other grou nd s, see id. at 137 & n.14. Our own discussions on the subject have been cursory, see Larsen v. Sen ate o f Pa., 154 F.3d 82, 94-95 (3d Cir.1998), and have not provided a clear archetype for analysis, see id.; see also Park er, 646 F.2d at 853-54. Opinions from other courts have offered sim ilarly limited explanations of the circumstances under which a legislative leader may be held liable for expelling a m em ber, without addressing Mt. Healthy or issues of cau satio n. See , e.g., Velez, 401 F.3d at 97-98; De gra ssi, 207 F.3d at 645-46; Miller, 878 F.2d at 532- 33. *12 The lack of guidance is attested further by the District Co urt's and the m ajo rity 's mis und erstand ing o f the natu re of the right to free expression. Neither the

opinions of the District Court nor that of the m ajority acknowledges that an official may defeat a prim a facie claim of a First Amendment violation by proving that the sa m e actions would have been taken absent the imp roper m otive. Th is princip le, clearly established by Mt. Healthy and Cra wford -El, eluded the D istrict Cou rt and contin ues to elude m y collea gue s. A lay p erson co uld hard ly be expected to understand th e con tours of this right when the matter has so confounded the federal judiciary. On ly on e stand ard is plain ly distillable from prior decisions, such that a reasonable person should have recognized it: a legislator ma y be disciplin ed or suspended from a public meeting if the action is reasona bly conso nan t with the leg itim ate goa ls of the forum . See, e.g., Bond, 385 U.S. at 135-36; Park er, 646 F.2d at 853-55; see also Mt. Healthy, 429 U.S. at 287. This princip le 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 comm on sense notion that the Constitution does not prohibit expulsion of an unru ly mem ber who se obstreperous con duct prevents fulfillmen t of legislative duties. 3. I cannot conclude, on this ba ckdrop , that a reason able officia l in Perkins-A ug uste's position should have realized that her condu ct exceeded constitutiona l bound s. There is no doubt that Monteiro was being disruptive during the meeting and failed to com ply with Perkins-Auguste's rulings. He had interrupted other members of the Cou ncil prior to Perkins-Augu ste's speech and had been wa rned a gain st such cond uct. Wh en Perkin s-Au gus te started speaking, Monteiro imm ediately interrupted on ce again. She ruled him out of order and threatened to remove him from the

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meeting. He ne verthele ss contin ued to speak. She asked the officers to remove him--not to arrest him--and yet he persisted. She agreed to his arrest o nly after it became evident that he wou ld not leave voluntarily. Mon teiro's repeate d disru ptions rendered continuation of the m eeting difficult, if not impossible. He prev ented other m em bers from conclu din g their remarks and effectively blocked a final vote on the budget propo sal. His cond uct w as, in sh ort, antithetical to the leg itim ate goals of the fo ru m . A rea son able officia l in th e sa m e position as Perkins-Auguste could have concluded, under existing caselaw, that the decision to remove Monteiro w as constitu tiona lly justified, regardless of her actual un derly ing intent. See , e.g., Bond, 385 U.S. at 135-36; Park er, 646 F.2d at 853-54; see also Mt . Healthy, 429 U.S. at 287. She is thus e ntitled to qualified imm unity. See Anderson, 483 U.S. at 638-40. This conclusion does not cast doubt on the jury's verdict, or its findings that Perkin s-Au gus te was motivated by a desi re to retaliate a gain st Mo nteiro a nd th at a constitutional violation did occur. That an official is granted qualified imm unity does not mean that he or she acted laudably or even constitutionally. To the contrary, an official ma y act in a mo rally an d lega lly culp able fashion and yet be en titled to im m unity if an objective observer, in the sa m e position, would not have recognized a constitutional infrin gem ent. Crawford-El, 523 U.S. at 592-93; Mihos, 358 F.3d at 105; see McKee, 2006 W L 2747 4, at *5-7. This legal determination does not vitiate or excuse the constitutional violation. It simp ly acknowledges that an official will not be held statu torily liab le, un der 42 U.S.C. § 1983, for a constitutional infringem ent of

which a reasonable person would not have been aware. [FN6] See , e.g., Cra wford -El, 523 U.S. at 592-93; Harlow, 457 U.S. at 818-19. FN6. The m ajority also sugg ests that Pe rk in s-Au gus t e fo r fe i te d th e defense of qua lified immunity by failing to file an interlocu tory appeal from the District Court's denial of qualified imm unity on sum m ary judg m ent. Maj. Op. at 3 n .1; see also id. at 19 ("After the jury returns a verdict, judgm ent as a matter of law will be granted to the defendant only if that verdict is not based on s u ff ic ie n t e vid e n ce ." ). Th is proposition is somewhat novel, and does not find support in decisions from our circuit or oth ers. See Chan v. Wodn icki, 67 F .3d 1 37, 1 39 (7 th Cir.1995) ("The trial has not made [the] claim of imm unity moot, for wh ile the immunity is from trial as well as from judgment, by the same token it is from judgm ent as well as from trial."); Matherne v. Wilson, 851 F.2d 752, 756-59 (5th Cir.1988) ("Th ere may be good reasons why a defendant ma y elect to not appeal [from the denial of qualified im m unity] before trial, and we see little valu e in a rule of waiver that would force unwan ted appe als, many of which undoubtedly never wou ld hav e been n ecessary."); 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 th e very least, it is an open question, and one that need not be resolved in this case, as the parties app arently agree that the issu e of qua lified im m unity has not been waived.

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Case 1:04-cv-01394-GMS

Document 162

Filed 03/01/2006

Page 19 of 19

2006 WL 288122 --- F.3d ----, 2006 WL 2 8812 2 (3rd Cir.(N.J.)) (Cite as: 2006 W L 2881 22 (3rd C ir.(N.J.)))

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II. *13 The m antle of qua lified im m unity will be denied to a public official only when a reason able person in the same situation wou ld have recognized a constitutional infring em ent. Perkin s-Au gus te's cond uct, even if violative of Monteiro's civil rights, was not so patently unconstitutional under existing caselaw as to deny her immu nity. The ma jority concludes to the con trary. It does so based on a fundam ental misinterpretation of the relationship of subjective intent to the First Amendment and the doctrine of qualified immunity. This error will, I fear, have un fortuna te ramifications for our jurisprudence in these fields. I respectfully dissen t. 2008372440 2008372440 -- - F .3 d -- -- , 2 00 6 W L 288 12 2 (3 rd Cir.(N.J.)) END OF DOCUMENT

© 2 006 T hom son/W est. No Claim to Orig. U.S. Govt. W orks.