The following summary is based on an opinion of the U.S. District Court for the District of New Hampshire. Federal district court cases apply federal law and sometimes New Hampshire law. Their interpretations of New Hampshire law are not binding on the New Hampshire Supreme Court.
This civil rights case under 42 U.S.C. sec. 1983, alleging violation of First Amendment rights, arose out of the 2009 Atkinson annual town meeting. Three citizens, Artus, Brownfield and Lewis, sued the Town, the police chief, the town moderator and other officials and former officials. Three separate but related incidents were involved, the “Phone Call,” “Lewis” and “Town Meeting” incidents. The court granted the defendants’ motions to dismiss, addressing the incidents one by one.
The Phone Call incident: Artus and Brownfield, leaders of taxpayers groups, circulated and submitted two petitioned warrant articles. One article was to make the police chief position full-time. Consentino is the incumbent part-time chief. The second article related to the town Elderly Affairs Office, which is run by Consentino. Consentino telephoned signatories of the petitions to ask why they had signed. He allegedly asked one citizen why his family “signed this s__t.” Several people who had signed then asked for their names to be removed from the petition and from the taxpayers group mailing lists. Artus and Brownfield claimed that Consentino’s actions had “chilled” their First Amendment rights to expression. The court held that such a claim requires that “the defendant’s action must be such that it would curb the expression of a ‘reasonably hardy individual.’” The court found that the plaintiffs had not cited sufficient facts to support the claim. The phone calls alone were insufficient. There was no allegation that Consentino had threatened to withhold benefits from elderly citizens, nor that any citizen expressed such fear.
The Lewis incident: Lewis alleged that he would not sign the petitions for warrant articles because he feared retribution by Consentino, based on prior harassment and intimidation. Lewis cited incidents from 2000 to 2007 involving yelling, sarcasm and glaring by Consentino; a phone call to prevent Lewis’s son from being hired by another police department; and a warning by an Atkinson officer to “watch what he says in town.” The court held that Lewis’s claim was barred by the three-year statute of limitations for Section 1983 claims (the analogous state tort statute of limitations is applied). The yelling incident in 2000 and the job-sabotage were too old, and the other allegations were insufficient to chill the speech of a “reasonably hardy” person.
The Town Meeting incident: At the town meeting, Brownfield, a professional photographer, took photographs for his taxpayers’ group newsletter. Other photographers took pictures for various purposes. Polito, the moderator, ordered Brownfield to stop and to delete all his photographs. When Brownfield objected, Polito threatened to eject him and called for a vote to prohibit additional photographs. At a break, Polito threatened that Brownfield would “be hearing from his lawyer.” Sapia, a former selectman, demanded that Brownfield delete photos of Sapia. Brownfield gave a memory card containing the photos to friends, who were accosted as they left the meeting by Sapia and an unnamed Atkinson police officer, who demanded the card.
The court distinguished the acts of the defendant Polito as moderator from his private remarks. Citing the United States Supreme Court decision in Bogan v. Scott-Harris, 523 U.S. 44 (1998), the court held that Polito was protected from Section 1983 liability in his capacity as moderator by “absolute legislative immunity”:
Legislative immunity is particularly important at the local level because if it is not granted, local legislators, who are often “part-time citizen-legislator[s],” might be “significantly deter[red]” from service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability.” Bogan, 523 U.S. at 52. Finally, if the activity at issue is legislative, the actor may not be held liable even if the activity violates the Constitution, so long as it is not “flagrantly violative of fundamental constitutional protections.” Nat’l Ass’n of Soc. Workers v. Harwood, 69 F.3d 622, 634 (1st Cir. 1995). Legislative immunity will protect an individual who, when acting as a moderator during legislative deliberations, enforces a rule to keep the proceedings in order.
Polito was held to be using his authority to keep order, even though he singled out Brownfield.
As for Polito’s threat during the break and Sapia’s actions, these were held to be purely private, not taken “under color of state law,” as required for Section 1983 liability.
Finally, the court held that there was no proof that the Town had a “custom” or “policy” of allowing Consentino or Polito to engage in the allegedly unconstitutional behavior. Thus the Town, itself, could not be held liable under 42 U.S.C. sec. 1983.