McDonough v. Garcia

90 F.4th 1080

James Eric MCDONOUGH, Plaintiff-Appellant, v. Carlos GARCIA, Garland Wright, individually, City of Homestead,a political subdivision of the State of Florida, Defendants-Appellees.

No. 22-11421

United States Court of Appeals, Eleventh Circuit

Filed: January 10, 2024

Appeal from the United States District Court for the Southern District of Florida, D.C. Docket No. 1:19-cv-21986-FAM

Alan Greenstein, Alan J. Greenstein, PA, Palmetto Bay, FL, for Plaintiff-Appellant.

Edward George Guedes, Anne Reilly Flanigan, Matthew H. Mandel, Weiss Serota Helfman Cole & Bierman, PL, Coral Gables, FL, for Defendants-Appellees.

Before Jill Pryor, Newsom, and Grant, Circuit Judges.

Grant, Circuit Judge:

James McDonough, a self-styled citizen activist, was escorted out of a city council meeting in Homestead, Florida after he verbally attacked one of the council's members. That removal, which the parties now agree was legal, was followed by a series of events that do not benefit from a similar posture of détente—an arrest for disorderly conduct, an indefinite ban from city hall, and an arrest for cyberstalking.

This lawsuit challenges all three. McDonough first says the City and its officials violated the First Amendment by banning him from future meetings. Before we can consider that argument, we need to know what kind of public forum those meetings are, because the City's ability to restrict McDonough's speech depends almost entirely on the answer to that question. But that inquiry highlights an unresolved tension in our Circuit's First Amendment jurisprudence. While the Supreme Court's public forum framework has evolved substantially over the last forty years, our precedents have failed to keep pace.

It seems likely that the Supreme Court would treat the Homestead City Council meeting as a limited public forum. That Court, however, has not specifically considered city council meetings—and this one has. Our earliest panel precedent treats a city council meeting reserved for the discussion of limited subjects as a designated public forum, so the comparatively tougher standards for analyzing speech restrictions in that kind of forum must apply here. Following those standards, we reverse the district court's grant of summary judgment for the City on the speech ban. But we affirm the district court's summary judgment decision finding qualified immunity for the officer who enforced the City's ban.

Moving on to the false-arrest counts, McDonough first argues that he should not have been arrested for disorderly conduct after he was removed from City Hall—even accepting as true the officers' claims that he was grabbing his crotch and loudly cursing at them. Here, we agree. Our precedents show that yelling, cursing, and making obscene gestures toward police officers, without more, does not amount to probable cause for a disorderly conduct arrest. The arresting officers should have known this too, so we deny qualified immunity.

McDonough also argues that the City did not have probable cause to arrest him for cyberstalking. This time we disagree. Though it is a close question, it was not unreasonable for the City to interpret Florida's cyberstalking statute as barring McDonough from targeting one of its officers with his series of posts. That means the City did have probable cause to arrest him for cyberstalking. We thus affirm in part and reverse in part.

I.

Homestead, Florida holds monthly city council meetings at its City Hall. During the comment portion of these meetings, members of the public are invited to speak for three minutes at a time on any matters "pertinent to the City." James McDonough was a regular, attending and speaking at more than half of the meetings held between 2015 and 2017. But it did not always go smoothly; the City had stopped him from completing his remarks several times.

Things came to a head during the July 2016 meeting. McDonough rose to address the council, and spoke for about two-and-a-half minutes without incident. He touched on various subjects, including alleged police misconduct, body cameras, and claims of nepotism within the police department. But toward the end of his allotted time, things took a turn for the worse. McDonough loudly confronted a city councilman, launching a personal challenge: "The last point I'd like to hit off with is, Mr. Maldonado, you know I'd appreciate it if you got something to say to me, you can come say it in my face, and you don't have to talk about me behind my back in public to other people." Sergeant Garland Wright, who later testified that he took these comments as a threat, quickly approached the podium and ordered McDonough to leave. He characterized his action as a de-escalatory tactic.

McDonough complied—at least with the instruction to leave. As he walked out of the auditorium, he threatened to "su[e] the shit" out of Wright, and then annotated his departure with a description of Homestead police that was laced with curse words. Meanwhile, the city council meeting continued without further disruption.

A month later, McDonough was back; he planned to attend the August city council meeting. But as soon as he arrived, Sergeant Wright intercepted him. He informed McDonough that the City had issued a trespass order, which amounted to a blanket ban from the premises—including during city council meetings. When McDonough asked how he could get the ban lifted, Sergeant Wright told him to "write a letter."

So far the exchange had been cordial, but as McDonough walked away he flipped his middle finger and said, "I'm leaving buddy, bye-bye." What happened next is debated. Wright claims he observed McDonough stop, grab his crotch, and say "fuck you." For his part, McDonough denies cursing or grabbing his crotch, though he admitted it was "possible" that Wright could have mistaken his taking his phone out for the more vulgar gesture.¹ Either way, the handful of other bystanders in the parking lot at the time seemed unconcerned about the interaction.

Sergeant Wright, however, did not take McDonough's response lightly—he ordered him to stop and then arrested him for disorderly conduct. Sergeant Carlos Garcia arrived on the scene later. After speaking with the arresting officers and reviewing surveillance video of the incident, Garcia informed McDonough that he was also under arrest for trespassing. Sergeant Garcia prepared McDonough's arrest form, charging him with both crimes. Officers then took McDonough to the police station, where he was held overnight before being released on bond the next day.

After his release, McDonough decided to hash out his frustrations online. Over the course of about fifteen minutes, he made three posts on a law-enforcement blog referencing his August arrest, identifying by name one of the officers involved. He also posted a link to a public YouTube video featuring that officer's public comments against body cameras. McDonough then challenged the same officer to wear a body camera, calling him a "frigging coward," a "slipttail [sic]," and a "giant twat." He warned that "any further retaliation" would be dealt with "swiftly, harsly [sic], and lawfully." McDonough closed by emphasizing that he would "be blasting [the officer's] address."

These blog posts did not sit well with the targeted officer, who later testified that he feared for his own safety and his family's. The City again arrested McDonough, this time for cyberstalking and witness tampering. After a Miami-Dade Criminal Court judge agreed that probable cause supported the cyberstalking charge (but not the witness tampering one), McDonough bonded out.

The state attorney eventually dropped all criminal charges against McDonough. But that was not the end of the matter—once the state criminal case was over, this federal civil case began. McDonough sued the City of Homestead and four police officers involved in his arrests. After the district court dismissed claims against two of the officers, the lawsuit proceeded to summary judgment on the seven remaining counts. Count 1 alleged that Sergeant Wright violated McDonough's First Amendment rights when he removed him from the July city council meeting. Counts 2 and 3 alleged that the City and Wright, respectively, violated McDonough's First Amendment rights when Wright issued the August trespass order barring McDonough from future meetings. Count 4 alleged false arrest by the City when Wright and Sergeant Garcia arrested McDonough for disorderly conduct; Counts 5 and 6 alleged violations of the Fourth Amendment by Wright and Garcia, respectively, for the same. Finally, Count 7 alleged false arrest by the City for the September cyberstalking arrest. The district court found for the defendants on all counts.

McDonough has abandoned Count 1, but appeals the district court's rulings against Counts 2 through 7.

II.

We review a district court's order granting summary judgment de novo. Brown v. Nexus Bus. Sols., LLC, 29 F.4th 1315, 1317 (11th Cir. 2022). "We view the evidence in the light most favorable to the nonmoving party, and we draw all justifiable inferences in that party's favor." Id. at 1317-18 (quotation omitted). "Summary judgment is proper 'if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' " Id. at 1317 (quoting Fed. R. Civ. P. 56(a)).

III.

The first issue we consider is whether the City violated McDonough's First Amendment rights when it barred him from attending city council meetings. We have long understood the common-sense point that the Constitution does not require the government to "grant access to all who wish to exercise their right to free speech," no matter the setting, "without regard to the nature of the property or to the disruption that might be caused by the speaker's activities." Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799-800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Disallowing any limits whatsoever in all...