Nebraska Town Sues Resident to Stop Sending Officials Letters, Ends Up Paying Him $16,000

From Lori Pilger (Lincoln Journal-Star) Saturday:

A man from Ord has reached a $16,000 agreement with the town of central Nebraska. The lawsuit was filed against him in an effort to have him stop sending letters and emails last year to the city officials, and to the police department they called “burdensome.”

From Judge John Gerrard Brock v. City of Ord (D. Neb. Sept. 17, 2020, in the opinion denying the motion of the city to dismiss the First Amendment claims for retaliation and denying qualified immunity

[J]This case may be allowed to continue, but that doesn’t necessarily mean it should. Each of those involved in this case should be ashamed. Nearly every public official attracts the eye of cranks with opinions and critics. The Court is not short of pen friends. However, rather than accepting that privilege of public service as a right, the defendants filed a lawsuit to ask a court in a state to place a restriction on the plaintiff’s speech. The plaintiff, for his part, prevailed in that case, and for his part could have been content with having his First Amendment rights vindicated by that victory—but instead, he’s filed Other Even though there is no immediate danger, the lawsuit was filed in its place.

This Court’s docket is full of cases genuinely implicating lives, livelihoods, and liberty—but instead of addressing those claims, the Court finds its attention diverted by having to referee this squabble. This makes it tempting to simply turn around and drive home. But of course, as long as the parties intend to keep it up, the Court is duty-bound to preside, so instead, the Court proceeds to the merits….

Brock complains about the following[:] …

  • [Plaintiff Guy]Brock often wrote letters to City officials [of Ord]Includes [Mayor Dan]Petska is related to the activities of the city government.
  • Petska, [City Attorney Heather] Sikyta, and other City representatives met in the winter of 2019–2020 to discuss Brock’s letter-writing, and ways to prevent Brock from further petitioning his representatives.
  • Petska and Sikyta met to discuss Brock’s practice of writing letters.
  • The City sued Brock at the District Court in Valley County, Nebraska on March 4, 2020. They asked for a permanent injunction prohibiting Brock to send “any type” of communications to the City and the Ord Police Department, “unless directly connected to a specific city service or function that is specifically related to Defendant’s property.”
  • The City requested damages for an undisclosed amount, legal fees and costs in its lawsuit.
  • Brock retained legal counsel to defend him. The District Court of Valley County dismissed Brock’s lawsuit on June 12, 2020 because he failed to assert a claim.

Brock alleges that the above actions by the defendants violated his First Amendment rights ….

“[T]To establish a First Amendment claim for retaliation in a specific case, the plaintiff must first show (1) that he participated in protected activities, (2) that defendant’s actions caused injury to plaintiffs, (3) that there is a causal relationship between the retaliatory animus, the injury, and (3) that plaintiff has shown that this connection existed.

Brock has provided sufficient evidence that Brock engaged in a protected act. Petitions to the government seeking redress are “among the most important of the freedoms protected by the Bill of Rights.” It is protected to write letters about government activities to elected officials.

Brock has also pleaded facts sufficient to reasonably infer the defendants’ conduct caused him an injury that would chill a person of ordinary firmness from continuing to petition city officials…. Brock claims that the defendants filed legal action against him after he wrote his letter. The City sued Brock to limit his speech permanently and demanded monetary damages as well as attorney fees and costs.  Brock claims that Brock was made to pay for his legal representation in order to exercise his constitutional rights of free speech and to petition his government. … It can … be plausibly inferred that a person of ordinary firmness would be chilled from further petitioning city officials once facing civil liability and the threat of monetary damages. It would not be unreasonable to assume that there was a lawsuit. Expressly It was not meant to stop Brock petitioning. …

Brock has alleged sufficient facts to establish a violation of a constitutional right—specifically, a violation of his right to be free from retaliatory action by the government for petitioning his elected officials…. [And a]The lawsuit filed was based on the undisputed fact that the citizens had a right not to suffer intentional or retaliatory government conduct in the wake of protected petitioning. This Circuit also held that only two types of petitioning speech were to be considered. Unprotected1) “Sham” speech that is only directed at harming other people and does not influence government actions; 2) genuine attempts to influence government policy, which are illegal, violent or defamatory.

Additionally, it was clear from the case of this Circuit that citizens are entitled to be free of any government official engaging in the machine of government lodge. It is baseless proceedings against them for exercising their right to petition…. Taking Brock’s allegations as true—that he was writing letters to his elected officials Information about the city’s activities, and that Petska and Sikyta decided to assert the lawsuit because of that speech—every reasonable official would have known that Brock’s speech was protected from intrusion by the First Amendment.

Consider the following: [Circuit precedent]Reasonable city officials would know that the lawsuit is without merit if Brock, who claims he was engaging only in protected petitioning activities and not under government control. Finally Williams And Harrison dealt with slightly different government conduct, they clearly established that frivolous legal and regulatory actions taken by local government against citizens in retaliation for petitioning violate the First Amendment…. Putting it all together, every reasonable official would have understood that baseless, retaliatory legal proceedings against a citizen for petitioning the government violate the First Amendment…..