                                                                                                                           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Precedential or Non-Precedential: Precedential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
