19-1740
Frierson v. Reinisch

                                       UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 26th day of March, two thousand twenty.

PRESENT:
           RICHARD C. WESLEY,
           SUSAN L. CARNEY,
           STEVEN J. MENASHI,
                       Circuit Judges.
_________________________________________

TRUMAN FRIERSON,

                       Plaintiff-Appellee,

                               v.                                                   No. 19-1740

PAUL REINISCH, DIRECTOR OF PHYSICAL EDUCATION,
HEALTH AND ATHLETICS, JOHN CARMELLO,
SUPERINTENDENT,

                       Defendants-Appellants,

TROY CITY SCHOOL DISTRICT, PAUL BEARUP, TROY CITY
SCHOOL DISTRICT BOARD OF EDUCATION, KATHY AHERN,
SCHOOL ATTORNEY, JOE MARIANO, PRINCIPAL,

                       Defendants. *

 *   The Clerk of Court is directed to amend the caption to conform to the above.
_________________________________________

FOR PLAINTIFF-APPELLEE:                                       MICHAEL H. SUSSMAN, Sussman &
                                                              Associates, Goshen, NY.

FOR DEFENDANTS-APPELLANTS:                                    GREGG T. JOHNSON, Johnson & Laws,
                                                              LLC, Clifton Park, NY.

        Appeal from an order of the United States District Court for the Northern District of
New York (D’Agostino, J.).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on June 5, 2019, is
AFFIRMED.

        Defendants-Appellants Paul Reinisch 1 and John Carmello (together, “Defendants”)
appeal from an interlocutory order of the United States District Court for the Northern
District of New York (D’Agostino, J.), denying their motion for summary judgment, which
they based on qualified immunity. We assume the parties’ familiarity with the underlying
facts, procedural history, and arguments on appeal, to which we refer only as necessary to
explain our decision to affirm.

        The following statement of facts is drawn from the evidence as viewed in the light
most favorable to Frierson: on an interlocutory appeal from the denial of qualified immunity
at summary judgment, we must accept a plaintiff’s version of the facts. See Tooly v. Schwaller,
919 F.3d 165, 172 (2d Cir. 2019).

        Frierson’s daughter, Shalie, played varsity basketball for Troy High School during the
2016-17 school year, as she had in several prior years. In December 2016, the parents of
several of Shalie’s teammates began to contact Frierson, sharing with him their complaints
about the conduct of the girls’ basketball coach, Paul Bearup (“Coach Bearup”). They asked



 1In the case caption that Defendants used in their Notice of Appeal, they spell this Defendant’s name
“Reinish.” Both the District Court in its orders and the parties in their appellate briefs, however, refer to this
Defendant as “Reinisch.” We therefore adopt the latter spelling and direct the Clerk to amend the caption
accordingly.


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Frierson to arrange a meeting with school administrators to discuss their concerns, including
concerns about Coach Bearup’s “brusque and abusive demeanor” towards the players. App’x
995.

       Frierson, who harbored similar unhappiness about Coach Bearup’s treatment of
Shalie, agreed to advocate on behalf of the parents. Towards that end, on January 5, 2017, he
met first with Joe Mariano, the principal of Troy High School, and then with John Carmello,
the Superintendent for the Troy City School District, to discuss the parents’ grievances. Not
satisfied by the outcome of either meeting, Frierson and several other parents then gathered
on January 6 to brainstorm “other means of making known [their] serious distress with the
coach,” including, inter alia, initiating a “student walk-out at an upcoming game.” App’x 998.
The group did not settle on a course of action, however, choosing instead to wait and see
“how the administration [would] respond to [their] concerns.” App’x 998.

       On the evening of January 9, 2017, Frierson drove to Troy High School to pick up
his daughter from basketball practice. After entering the gymnasium through a side door, “as
[he] had done many times [before]” (he later averred), Frierson was approached by several of
Shalie’s teammates, who started to express their discontent with Coach Bearup. App’x 998–
99. To hear them out, Frierson walked with the players into the Troy High School cafeteria,
where he proceeded to update them on the parents’ efforts to resolve these issues with
school officials. During this conversation, Frierson mentioned to the students the possibility
of organizing a student “walk-out.” App’x 999. Frierson did not, however, “encourage” the
players to boycott any of the team’s upcoming games, urging them instead to “speak with
their own parents” about how best to address the situation. App’x 999.

       The next day, Reinisch, then the Athletic Director for the Troy City School District,
heard that a parent had met with several varsity basketball players in the school’s cafeteria
and asked them to walk off the court during the next game, which was scheduled to take
place that evening (January 10). Director Reinisch proceeded to investigate what he later
described as a “rumor.” App’x 104. First, he spoke with a parent of one of the players who
confirmed his understanding that, during the impromptu meeting in the cafeteria, Frierson
had encouraged the students to protest Coach Bearup’s behavior by walking out of the

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January 10 basketball game. Director Reinisch then watched footage of the gathering
recorded by a surveillance camera located in the school cafeteria. Although the video
recorded only images and not sound, it indeed showed Frierson meeting with a group of
basketball players on the evening of January 9.

        The January 10 basketball game took place without incident: none of the players
protested or walked off the court. Then, on January 13, Director Reinisch informed Frierson
by phone that he had banned Frierson from attending future Troy High School athletic
events. In a letter dated the same day, Director Reinisch accused Frierson of (1) holding “a
meeting with students on school property” without the knowledge or permission of school
authorities, and (2) “attempt[ing] to organize a protest against [the school’s] coaching staff,
encouraging multiple players to walk off the court.” App’x 169. “In light of these events,”
Director Reinisch announced, Frierson could “no longer . . . attend any Troy athletic events
until further notice.” The ban covered both “home and away games.” Id.

        Frierson then filed this action against Defendants-Appellants (and others), alleging
that the ban violated, among other rights, his First Amendment right of peaceful assembly. 2
After discovery, Defendants sought summary judgment in their favor, arguing that they were
entitled to qualified immunity as a matter of law. The District Court denied their motion,
concluding based on the record evidence that a rational jury could find that the ban was
imposed in retaliation for Frierson “having spoken out against the varsity coach” and that it
therefore violated the First Amendment. Frierson v. Troy City Sch. Dist. Bd. of Educ., No. 1:17-
CV-44, 2019 WL 2371605, at *3 (N.D.N.Y. June 5, 2019). The District Court determined,
moreover, that, if proven, Defendants’ acts violated law that was clearly established at the
time, relying heavily on our decision in Johnson v. Perry, 859 F.3d 156 (2d Cir. 2017).
Accordingly, the District Court held, the existence of genuine issues of fact related to why
the ban was imposed, for example, precluded the requested dismissal of Frierson’s First



 2 Frierson also sued the Troy City School District, Coach Bearup, Principal Mariano, and Kathy Ahern (an
attorney for the School District). The District Court dismissed those parties from the suit in its summary
judgment order, allowing only Frierson’s First Amendment claims against Director Reinisch and
Superintendent Carmello to proceed.


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Amendment claims on qualified immunity grounds. This timely interlocutory appeal then
followed.

       We have “jurisdiction to review an interlocutory appeal of a denial of qualified
immunity when the underlying issues raise only questions of law.” Tooly, 919 F.3d at 172
(internal quotation marks omitted). Thus, “we may determine whether a defendant is entitled
to immunity on stipulated facts, or on the facts that the plaintiff alleges are true, or on the
facts favorable to the plaintiff that the trial judge concluded the jury might find.” Bolmer v.
Oliveira, 594 F.3d 134, 141 (2d Cir. 2010) (internal quotation marks omitted). But “[i]f a
factual determination is a necessary predicate to the resolution of whether immunity is a bar,
review is postponed and we dismiss the appeal.” Tooly, 919 F.3d at 172 (internal quotation
marks and alterations omitted).

       Where, as here, “a defendant official invokes qualified immunity as a defense in order
to support a motion for summary judgment, a court must consider two questions: (1)
whether the evidence, viewed in the light most favorable to the plaintiff, makes out a
violation of a statutory or constitutional right, and (2) whether that right was clearly
established at the time of the alleged violation.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir.
2010). With respect to the second prong of the qualified immunity test, “the Supreme Court
has repeatedly (and recently) reminded us that clearly established law must be particularized
to the facts of the case and must not be defined at a high level of generality.” Naumovski v.
Norris, 934 F.3d 200, 211 (2d Cir. 2019) (internal quotation marks omitted). As a result,
“officials only forfeit their immunity when existing precedent has placed the statutory or
constitutional question beyond debate and that precedent has been recognized under similar
circumstances.” Id. (alterations, brackets, and internal quotation marks omitted).

       We conclude that, at this point in the proceedings, Defendants are not entitled to
qualified immunity. It is well-established that the government may not retaliate against
individuals for exercising their rights under the First Amendment. See, e.g., Dorsett v. Cty. of
Nassau, 732 F.3d 157, 160 (2d Cir. 2013); Blue v. Koren, 72 F.3d 1075, 1082 (2d Cir. 1995).
That is especially true when the government singles out a speaker for disfavored treatment
based on the views he or she has expressed. “It is a fundamental principle of the First

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Amendment that the government may not punish or suppress speech based on disapproval
of the ideas or perspectives the speech conveys. Such discrimination based on viewpoint is
an egregious form of content discrimination, which is presumptively unconstitutional.”
Ragbir v. Homan, 923 F.3d 53, 70 (2d Cir. 2019) (internal citations, quotation marks, and
brackets omitted).

       Moreover, in the specific context of retaliation by a school official restricting access
to athletic events, we have said that where, as here, a public school invites parents and other
spectators to attend sporting events held in its gymnasium, the gymnasium operates as “a
limited public forum” and the school may restrict access to a limited public forum only when
(1) “its restrictions are reasonable and viewpoint-neutral,” or (2) “there is a clear and present
danger of disruptions such as disorder, riot, obstruction of the event, or immediate threat to
public safety.” Perry, 859 F.3d at 175.

       In Perry, we considered whether qualified immunity protected a high school principal
who banned a student’s father in early 2013 from attending future sporting events held at the
school. Like Frierson, the father in Perry was banned after complaining to school
administrators that his daughter, a member of the varsity basketball team, wanted to quit the
team because the coach was treating her unfairly. See id. at 161, 163. When the father learned
that school officials were pressuring his daughter to remain on the team, he met with the
principal, and the two exchanged heated words. See id. at 162–63. The following day, the
principal informed the father that he was banned from attending all future school sporting
events, purportedly because the father’s “verbal altercations, physical intimidation and direct
threats to staff ha[d] created an unsafe environment for staff, students and other parents.”
Id. at 163 (internal quotation marks omitted). Shortly thereafter, the father sued, alleging that
the ban violated his rights under the First Amendment. Id. at 160.

       On an interlocutory appeal from the district court’s denial of summary judgment, we
ruled that the district court was correct in denying qualified immunity to the principal as a
matter of law. Based on the father’s version of the events, we explained, a rational juror
could find that the father “presented no threat of disruption or of harm to anyone”; that the
principal’s “motive in banning” the father from future sporting events was to punish him for

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expressing negative views about school administrators; and that the ban was therefore
“neither viewpoint-neutral nor reasonable.” Id. at 175–76. Moreover, we observed, “the right
not to be excluded, based on viewpoint differences or because of possible annoyance, from
sports events to which the public was invited was clearly established” when the principal
banned the father—i.e., in February 2013. Id. at 162, 176.

       Our decision in Perry disposes of Defendants’ interlocutory appeal here. As in Perry, a
rational factfinder could conclude that Frierson did not present a threat of disorder or harm
to anyone, especially since Troy High School’s January 10 basketball game had taken place
without any disruption or incident. Viewing the evidence in the light most favorable to
Frierson, as we must at this juncture, a jury could further conclude that Defendants’
motivation for imposing the ban was retaliatory: it was to punish Frierson for speaking out
against Coach Bearup. Although Defendants assert on appeal that they banned Frierson
because they wanted to “protect” the student players from “being upset . . . or engaged by”
Frierson, Defs.’ Brief 21, a jury could reasonably view that justification as a pretextual, post
hoc rationalization of viewpoint discrimination, or unlawful retaliation. Indeed, in his letter
informing Frierson of the ban, Director Reinisch did not justify his action on student-safety
grounds; instead, he pointed to Frierson’s unauthorized entry onto school grounds and his
“attempt[s] to organize a protest against [the] coaching staff” as the bases for excluding
Frierson from future sporting events. App’x 169. Accordingly, a rational juror could
conclude that Defendants violated Frierson’s First Amendment rights by retaliating against
him and by imposing a ban that was neither viewpoint neutral nor reasonable.

       The contours of those rights in the context of a school sporting event, moreover,
were clearly established in January 2017, when Defendants imposed the ban on Frierson. In
our 2017 decision in Perry, we observed that—viewing the evidence in the light most
favorable to the father—the principal violated clearly established law when in early 2013 he
banned the father from attending school sporting events to punish him for expressing
negative views about school administrators. Perry, 859 F.3d at 163, 176. Given the close
similarity between the facts in Perry and those at issue here, we conclude that, under



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Frierson’s version of the events, Defendants’ conduct violated law that was clearly
established since as early as 2013.

       On appeal, Defendants raise two main counterarguments, neither of which is availing.
First, Defendants submit that Perry is inapposite because it was decided in June 2017, five
months after Defendants imposed the ban on Frierson. This argument misunderstands the
import of Perry, however. We did not recognize a new constitutional right in Perry. Instead, we
explained that “the right not to be excluded, based on viewpoint differences or because of
possible annoyance, from sports events to which the public was invited was clearly established”
when the principal in Perry banned the plaintiff father: that is, in February 2013. Id. at 163,
176 (emphasis added). Thus, even though our opinion in Perry was published after
Defendants imposed the ban on Frierson, Perry nonetheless shows that Defendants’ alleged
conduct violated clearly established law. See Brand v. Casal, 877 F.3d 1253, 1265 n.10 (11th
Cir. 2017) (relying on a case decided after the defendant’s alleged violation occurred to show
that the defendant’s conduct violated clearly established law), vacated on mootness grounds (May
1, 2018).

       Second, Defendants fault the District Court for denying them qualified immunity
based on the presence of disputed facts concerning Defendants’ subjective motivations for
banning Frierson. Citing the Supreme Court’s decision in Crawford-El v. Britton, 523 U.S. 574
(1998), Defendants assert that subjective motives are “simply irrelevant to th[e] qualified
immunity defense.” Defs.’ Reply Br. at 8–9 (brackets and internal quotation marks omitted).
Accordingly, Defendants contend, it made no difference to the merits of their immunity
defense whether the ban was motivated by a (legitimate) desire to protect the players’ safety
or an (unlawful) intent to punish Frierson for expressing negative views about Coach
Bearup.

       In so arguing, Defendants misunderstand Crawford-El and its progeny. As we
explained in Locurto v. Safir, “[i]n the usual case where intent is not an element [of the
plaintiff’s constitutional claim], . . . the qualified immunity doctrine focuses only on whether
the government official’s actions were objectively reasonable in light of clearly established
law, without regard for possible subjective malice.” 264 F.3d 154, 169 (2d Cir. 2001). But

                                                8
where a specific illegal intent is an element of the plaintiff’s claim, factual disputes over
whether the defendant acted with that intent will preclude the district court from granting
qualified immunity at the summary judgment stage. See id. To hold otherwise, we observed,
“would effectively immunize all defendants in cases involving motive-based constitutional
torts, so long as they could point to objective evidence showing that a reasonable official
could have acted on legitimate grounds.” Id. (internal quotation marks omitted).

       Frierson’s First Amendment claim in this case is a motive-based constitutional tort.
See, e.g., Johnson v. Ganim, 342 F.3d 105, 107, 117 (2d Cir. 2003) (classifying plaintiff’s First
Amendment claim for retaliatory termination of employment as a “motive-based
constitutional tort[]”); see also Monteiro v. City of Elizabeth, 436 F.3d 397, 404–05 (3d Cir. 2006)
(concluding that “specific intent” was an element of plaintiff’s First Amendment claim
alleging exclusion from a public meeting). That is, whether the ban violated his First
Amendment rights turns on whether Defendants imposed the ban to punish Frierson for
expressing dissatisfaction about Coach Bearup or for a viewpoint-neutral reason. See Locurto,
264 F.3d at 170 (noting that “[u]nlawful intent” is “a necessary element of plaintiffs’ properly
framed First Amendment retaliation claim”). Accordingly, the District Court correctly
concluded that Defendants were not entitled to qualified immunity at summary judgment in
light of the unresolved factual disputes over Defendants’ motivation for banning Frierson
from future sporting events.

                                               * * *

       We have considered Defendants’ remaining arguments and conclude that they are
without merit. For the foregoing reasons, the District Court’s judgment is AFFIRMED.

                                                       FOR THE COURT:

                                                       Catherine O’Hagan Wolfe, Clerk of Court




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