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THE NEUBERGER FIRM
A TTORNEYS AND C OUNSELLORS AT L AW

TWO EAST SEVENTH STREET SUITE 302 WILMINGTON, DELAWARE 19801-3707
WWW.N EUBERGERL AW.COM EMAIL: I NFO@N EUBERGERL AW.COM

T HOMAS S . N EUBERGER, ESQUIRE S TEPHEN J . N EUBERGER, ESQUIRE

PHONE: (302) 655-0582 FAX: (302) 655-9329

March 3, 2006 The Honorable Gregory M. Sleet United States District Court District of Delaware 844 King Street Wilmington, DE 19801 RE:

Via CM/ECF Filing

Price, et al. v. Chaffinch, et al., C.A. No. 04-956-GMS Foraker v. Chaffinch, et al., C.A. No. 04-1207-GMS Citation of Supplemental Authority Pursuant to D.Del. L.R. 7.1.2(c)

Dear Judge Sleet: Pursuant to Local Rule 7.1.2(c), plaintiffs bring to the Court's attention supplemental legal authority issued by the Third Circuit which bears upon the pending summary judgment motions and which were "decided after [plaintiffs'] final brief" was filed on the relevant issue. Qualified Immunity On January 25, 2006, defendants moved for summary judgment. (Price - D.I. 80-81; Foraker - D.I. 60,62). Their defenses included a claim that they were entitled to qualified immunity. On February 8th, plaintiffs filed their Answering Briefs, opposing the defense motions. (Price - D.I. 98; Foraker - D.I. 79). In these briefs, plaintiffs responded to the defense claim. These were plaintiffs' "final brief[s]" for Local Rule 7.1.2(c) purposes. The same day that plaintiffs filed their Answering Briefs on February 8th, the Third Circuit issued a qualified immunity opinion in the free speech context in Monteiro v. City of Elizabeth, 436 F.3d 397 (3d Cir. 2006). This recent opinion directly bears upon the qualified immunity issues currently under submission. A copy of that opinion is attached to this letter. In Monteiro, the Third Circuit held that when there is a factual dispute as to whether a public official is motived by illegal or legal reasons in taking an action against an individual in

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response to the exercise of that person's free speech rights, this factual dispute must be resolved by the jury before the Court rules on the qualified immunity defense. Id. at 404-06 The Circuit explained that 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. Id. at 405. Thus, if [defendant] acted with an intent to suppress [plaintiff's] speech ... []he 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. Id. at 404 (internal punctuation omitted) (emphasis added). Briefly, this recent binding Third Circuit authority relates to the qualified immunity issue as follows. Plaintiffs assert that defendants took numerous adverse actions against them in retaliation for the exercise of their free speech and petition clause rights. In other words, that defendants had illegal and `impure' motives. Defendants claim that instead, all of the actions they took against plaintiffs were for other legal or `pure' reasons. To the extent defendants claim that qualified immunity is somehow a live issue in this case, at the very least there is a fact dispute as to what defendants' motivations were in taking their numerous adverse actions against plaintiffs.1 As a result, if the Court decides that qualified immunity is an open issue, it cannot be decided at summary judgment due to the fact dispute over defendants' motives. If the jury finds that defendants' motives were impure, than qualified immunity must be denied because "it can never be objectively reasonable for a government official to act with the intent that is prohibited by law," id., here, the intent to violate plaintiffs' First Amendment rights.

Respectfully submitted, /s/ Stephen J. Neuberger Attorney for Plaintiff

As discussed in plaintiffs' summary judgment opening briefs, plaintiffs believe that in light of the overwhelming causal evidence these cases have revealed, there is no factual dispute that defendants acted for illicit reasons and that no reasonable jury could conclude otherwise. 2

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cc:

Thomas S. Neuberger, Esq. (via CM/ECF) Martin D. Haverly, Esq. (via CM/ECF) Richard M. Donaldson (via CM/ECF)

FTU \ Letters \ Sleet.03

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Briefs and O ther Related Do cuments United States Co urt of Appe als,Third C ircuit. Armenio T. MONT EIRO v. CITY O F ELIZABE TH; Patricia Perkins-Auguste, Council P resident; And rew R . Cox, Police Officer; Richard M eola, S ergea nt of Police P atricia Perkins-Auguste, A ppe llant. No. 04-3756. Argued Oct. 25, 2005. Filed Feb. 8, 2006. Background: City council member bro ught action against presid ent of city council, alleging that she violated his 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. The United States District Court for the District of New Jersey, Jose L. Linares, J., denied president's summary judgment motion, and entered judgment in favor of council member, and president appealed.

from the city law d epartment pertaining to the procedure to be followe d in ejecting an unruly member of city council was admissible.

Affirmed.

Fisher, Circuit Judge, filed dissenting opinion. W est Headnotes [1] Officers and Public Employees 283 119

283 Officers and Public Employees 283III Rights, Powers, Duties, and Liabilities 283k119 k. Actions by or A gainst Officers and Employees. Most Cited Cases Qualified immunity is an immunity from suit rather than a mere defense to liab ility, and like an absolute immunity, it is effectively lost if a case is erroneously perm itted to go to trial. [2] Constitutional Law 92 90.1(1)

Ho ldings: The Co urt of Appe als, Rosenn, Circuit Judge, held that: 4(1) when qualified immunity depends on disputed issues of fact, those issues must be determined by the jury; 6(2) material issue of genuine fact existed as to whether city council president acted with a mo tive to suppress council member's speech based upon his viewpoint when she had him removed from council meeting, precluding summary judgment in favor of president on qualified immunity grounds; and 8(3) evidence of city council member's acquittal of disorderly persons charge and a memorandum of law

92 Constitutional Law 92V Personal, Civil and Political Rights 92k90 Freedo m of Speech and of the Press 92k90.1 Particular Ex pressions and Limitations 92k90.1(1) k. In G enera l. Most Cited Cases W hen a pub lic official excludes a elected representative or a citizen from a public meeting, she must conform her conduct to the requirements of the First Amendment. U.S.C.A. Const.Amend. 1. [3] Constitutional Law 92 90.1(4)

92 Constitutional Law 92V Personal, Civil and Political Rights 92k90 Freedo m of Speech and of the Press

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92k90.1 Particular Expressions and Limitations 92k90.1(4) k. Use of Streets and Pub lic Places; Licenses and Permits. Most Cited Cases 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. U.S.C.A. Const.Amend. 1. [4] Officers and Public Employees 283 119

precluding summary judgment in favor of president on qualified immunity ground s on mem ber's First Amendm ent claim. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983. [7] Federal Civil Procedure 170A 249 1.5

283 Officers and Public Employees 283III Rights, Powers, Duties, and Liabilities 283k119 k. Actions by or Against Officers and Employees. Most Cited Cases Although qualified immunity is a question of law determined by the court, when qualified imm unity depends on disputed issues of fact, those issues must be determined by the jury. 42 U.S.C.A. § 1983. [5] Federal Civil Procedure 170A 215 3.1

170A Federal Civil Procedure 170A XV II Judgment 170AXVII(C) Summary Judgment 170A XV II(C)2 Particular Cases 170 Ak2 491 .5 k. Civil Rights Ca ses in General. Most Cited Cases W hen a constitutional violation depends on evidence of improper intent, it is sufficient for the plaintiff to identify affirmative evidence fro m which a jury could find the pertinent motive, in order to survive summary judgment on that issue. [8] Civil Rights 78 1422

170A Federal Civil Procedure 170AXV Trial 170AXV(F) Taking Case or Question from Jury 170A XV (F)2 Questions for Jury 170Ak2153 Particular Issues 170 Ak2 153 .1 k. In Genera l. Most Cited Cases Mo tive 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 co urtroo m and obse rve their demeanor. [6] Federal Civil Procedure 170A 249 1.5

78 Civil Rights 78III Federal Remedies in General 78k1416 Weight and Sufficiency of Evidence 78k1422 k. Other Particular Cases and Contexts. Most Cited Cases Evidence of city council member's acquittal of 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 was a dmissible in co uncil memb er's civil rights suit against city council president for violation of his First Amendment rights when president removed him from council meeting and had him charged criminally in orde r to supp ress council mem be r's speech. U.S .C.A. Const.Amend. 1; 42 U .S.C.A . § 1983. [9] Civil Rights 78 1465(1)

170A Federal Civil Procedure 170A XV II Judgment 170AXVII(C) Summary Judgment 170A XV II(C)2 Particular Cases 170 Ak2 491 .5 k. Civil Rights Cases in General. Most Cited Cases Material issue of genuine fact existed as to whether city council president acted with a motive to suppress council mem ber's spe ech b ased upon his viewpoint when she had him removed from council meeting,

78 Civil Rights 78III Federal Remedies in General 78k1458 Monetary Relief in General 78k1465 Exemplary or Punitive Damages 78k1465(1) k. In General. M ost C ited Cases A $750 punitive damages award was warranted in §

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1983 action where city council president acted recklessly and with callous indifferenc e to co uncil me mb er's First Amendment rights in having him removed from counc il meeting on basis of his viewp oint. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983.

finding that Perkins-Auguste had acted recklessly and with callous indifference to M onteiro'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. W e affirm the judgment because we find no error in the proceedings. The jury's verdict is based on sufficient evidence.

*399 Robert F. Varady (Argu ed), LaCo rte, Bundy, Varady & Kinse lla, Union, N J, for Appe llant. David F. Corrigan (Argued), Keyport, NJ, for Appellee. Before SLOVITER, FISHER, and ROSENN, Circuit Judges.
FN*

I. [1] Perkins-Auguste challenges the denial of judgment as a matter of law, FN1 the *400 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 imm unity because a reaso nable 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 de liberately to violate his constitutional rights. Perkins-Auguste also argues that it was substantial error for the District Court to ad mit evidence of Monteiro 's acquittal, in municipal court, of the disorderly perso ns charge, and a C ity Legal Department Memorandum of Law outlining the pro cedures to be followed by a Counc il Presid ent in eje cting an unruly member.

FN* The Honorable Max Rosenn, Sr. submitted this opinion to the C lerk's office for processing on February 2, 2006. Prior to the filing of the opinion, Judge Rosenn passed away.

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. M onteiro filed an action under 42 U.S.C. § 1983 against defendant Patricia Perkins-Auguste, alleging that when he wa s a member of the Elizabeth, New Jersey City Council, Perkins-Auguste, then President of the Council, violated his First Amendment rights by ejecting him from a pub lic 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 M onteiro ejected from the meeting on the basis of viewpoint. The D istrict Court submitted the disp uted factual question to the jury, which returned a verdict for the plaintiff, Monteiro, awarding him $10,000 in com pensatory dam ages. The jury also awarded M onteiro $750 in punitive damages,

FN1. 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 jud gment 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 jud gment,

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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 ord er to prese rve its protections. Saucier v. Katz, 533 U.S. 194, 200-201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Mitchell v. Forsyth, 472 U.S. 511, 525-526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Qualified immunity is " `an imm unity from suit rather than a mere defense to liability; and like an abso lute immunity, it is effectively lost if a case is erroneously permitted to go to trial.' " Sau cier, 533 U.S. at 200-201, 121 S.Ct. 2151 (quoting Mitchell, 472 U.S. at 526, 105 S.Ct. 2806). We treat her appeal as an appeal of her motion for judgment as a matter of law. II. On April 10, 20 01, the Elizab eth City C ounc il convened for the purpo se of considering the City's proposed annual budget. Perkins-Auguste was, at that time, President of the C ounc il 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 b road cast by a local cable station. The mem bers of the Council spoke in turn abo ut their view s on the proposed budge t. Mo nteiro expressed at length his strong o bjec tions to the budget, exercising his constitutional right to petition the government on be half of himself and his constituents. After some discussion from other councilpersons, Perkins-Auguste bega n to speak. Rather than address the merits of the budget, however, she immediately leveled a pointed attack at Monteiro 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 Mo nteiro, held up a copy of the pamphlet and stated: I just want to say, this is deception, what was found in the Council chambers. W hen you tell residents to come up to C ity Council because they're going to be charged ad ditiona lly 600 and 800 dollars for owning a home in the City of Elizabeth, this is d ecep tion, Councilman M onteiro , with your name on it.

M onteiro 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 *401 gavel. Perkins-Auguste then asked two municipal officers, who were acting as sergeants-at-arms, to remove M onteiro 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 com munity, when you state there's a 600, an 800 dollar tax increase. M y 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 do n't know where you gu ys are coming off with a thousand dollars, 600 dollars, 800 dollars tax increase. Get the facts straight. If you do n't want to vote for the budget, do n't vote for the budget, but do not lie to the general population. This is disgusting. If you want peo ple 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.

Mo nteiro then said : "W ell, we'll wait for the bills to come out." In response, Perkins-Auguste exclaimed: "This man c anno t keep his mouth shut," and once again asked that he be remov ed. Mo nteiro responded that he would not vo luntarily 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

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that they should "ask for a legal opinion on this," and that "there are rules and regulatio ns in our code that we can adopt right no w." Perkins-Auguste did not appear to consult or follow any establishe d procedure in ejecting Monteiro. The evidence introduced at trial revea ls that there were at least two possible procedures availab le to her under the City Council's governing rules. The rules required that the Council vote on the matter of a co uncilperson 's removal. FN2 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 ap ologize, I understand that." So on thereafter, Perk ins-Auguste called a five-minute recess.

FN2. A legal memorandum of the City Law Departm ent, dated Septemb er 26 , 200 0, less than a year before the April 10, 2001 m eeting, states: "The Rules of Procedure do not provide a specific remedy av ailable to the City Council President if a member fails to com ply with the orders of the President after being ruled out of o rder repeatedly." The memorand um notes, however, that the City Rules incorp orate Robert's Rules of Order, which provide the autho rity to eject an unruly member. The memorandum concludes: "Therefore, it is our opinion that if a member of the City C ounc il repea tedly refuses to com ply with the orders and rulings of the President, the membe r ... may be ejected ... by vote of a majority of those Council members present and voting." In add ition, 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 mann er while addressing the Council shall be forthwith barred by the presiding officer from further audience before the Council, except that if the sp eaker shall subm it to proper order under these rules, permission for him to continue may be granted by a majority vote of the Co uncil." W hen the Council reconvened, M onteiro 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 M onteiro und er arrest and remo ve 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: *402 He filibustered for o ver twenty-five minutes. Not one Council member opened their mo uths. 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 vo te 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 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, m aybe seventy or fifty dollars here, nothing more. W e all hate to raise taxes, b ut 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 wo rd, bu t 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 C ity busine ss.... Our chief role as Counc il representatives is to allocate funds to run the City, to investigate, and to appropriate. And if we cannot do that in a dece nt, orderly mann er and respect one another's positio ns, then we're just all for waste. Again, my colleagues, I apologize to you, but he left me with no decision but to have him to b e removed. Constantly interrupting throughout the entire meeting, constant warnings. I have a two-and-a-half year old,

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and I was talking to him like m y 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 aga in, 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 [p amp hlet] 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 allowe d it.

As a result of his removal from the meeting, Mo nteiro was deprived of his opportunity to vote on the budget. He was also charged with disruption of a public meeting in violation of New Jersey law, but subsequently found not guilty of the offense in municipal co urt. FN3

Monteiro's First Amendment claim. The D istrict Court disagreed, however, finding that whether she was entitled to qualified immunity depended on the disputed question of her m otivation for ejecting Monteiro from the meeting. The District Court held that the First Amendm ent 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 viewp oint-neu tral, 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 Elizab eth's Rules of Procedure forbade C ounc il members from delaying or interrupting proceedings and allowed the presiding officer to bar unruly members "except that if the spe aker 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 he ld that these pro visions w ere facially valid time, place, manner restrictions because they were viewpo int-neutral, narrowly tailored to serve the significant governmental interest in cond ucting o rderly and efficient meetings of a public bo dies, and left open amp le alternative channels of communication. But the District Court concluded that the factual record raised a disputed question of fact whether M onteiro 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 p arties, the word s that were actua lly said at the me eting, and viewing Plaintiff's conduct as shown in the videotape, could reasonably conclude that the Plaintiff was not being disruptive and that Ms. P erkins-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 propo sals. Indee d, prio r to the event, Defendant was aware of Plaintiff's view and knew that he was going to vote and argue against the bud get. Therefore, material questions of fact exist as to whether Defenda nt's motive for acting against Monteiro resulted

FN3. The offense of "disrupting meetings and processions" is defined as follows: A person comm its 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 . Mo nteiro filed a civil suit against the City of Elizabeth, the police officers who remo ved him from the C ity Council Meeting, and Perkins-Auguste in her capa city 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 Am endment, Fourth Amendment, and due process rights. Mo nteiro's claims against the City and the police officers were disposed of by voluntary dismissal and on sum mary judgm ent, as were most of his claims against P erkins-A uguste. *403 The District Court denied Perkins-Auguste's motion for summary judgment on M onteiro'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

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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 respo nsibilities. Monteiro v. City of Elizabeth, No . 01-1 844 , at 22-2 3 (D.N.J. Nov. 12, 200 3). T he D istrict Court further concluded that the availability of q ualified im munity depended on this disputed issue o f fact:If Ms. Perkins-Auguste's motivation in removing M r. Mo nteiro was her animosity toward s him and the desire to stifle his view on the budget, then M s. 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 *404Anderson v. Creighton, 483 U.S. 635 , 640 , 107 S.Ct. 3034, 97 L.Ed.2d 523 (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 impro per to determine this matter via summ ary jud gment. Id. Accordingly, the D istrict Court con cluded 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 Mon teiro's First Amend ment claim aga inst Perkins-Auguste.

that does not violate clearly established law of which a reaso nable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity " `gives amp le room for mistaken judgments' by protecting `all but the plainly incom peten t or those who know ingly violate the law.' " Hu nter v. B ryan t, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs, 475 U.S. 335 , 341 , 343 , 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). [2] [3] It is clearly established that when a public official exclud es a elected representative or a citizen from a pub lic meeting, she m ust conform her co nduc t to the requirements of the F irst Amendment. See, e.g., Eichenlaub v. Twp. of In d., 385 F.3d 274, 281 (3d Cir.2004) (applying public forum analysis to townsh ip official's curtailing of allegedly disruptive sp eech at a public meeting); Collinson v. Go tt, 895 F.2d 994, 995, 999 (4th Cir.1990) (remo val 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 disruptive behavior); Mu sso v. Hourigan, 836 F.2d 736, 739 (2d Cir.1988) (school board's removal of citizen from public meeting for disrup tive behavior). It is also clearly established that content-based restrictions on speech in a public forum are sub ject to s trict scrutiny, while viewpoint-based restrictions violate the First Amendm ent regardless of whether they also serve some valid time, place, ma nner interest. See, e.g., Good News v. Milford Cen t. Sch., 533 U.S. 98, 106-107, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001); Rosenberger v. Rector & Visitors of Univ. Of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Lamb's Chapel v. Ctr. Moriches Union Free Sch. D ist., 508 U.S. 384, 392-393, 113 S.Ct. 2141, 124 L.Ed.2d 352 (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

III. W e review a denial of judgment as a matter of law de novo, viewing the evidence in the light most favora ble to the pre vailing 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 q ualified immunity protects government officials from civil damage suits for official conduct

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prohibited by law." Locu rto v. Safir, 264 F.3d 154, 169 (2d Cir.2001). Acco rdingly, the District Court did not err in holding that whether Perkins-Auguste's conduct violated clearly established law depended upon her motivation*405 for ejecting Mo nteiro from the meeting. Furthermore, it was not error to subm it 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 viewpo int. [4] [5] 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 John son v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (qualified immunity may turn on disputed issues of fact); Karnes v. Skru tski, 62 F.3d 485, 491 (3d Cir.1995) ("W hile the qualified im munity defense is frequently determined by courts as a matter of law, a jury should decid e disputed factual issues relevant to that determination."). Motive is a question of fact that must be decided by the jury, which has the o ppo rtunity to hear the exp lanations of both parties in the courtroom and observe their demeanor. See Mitchell v. Forsyth, 472 U.S. 511 , 529 , 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (improper intent is a pure question of fact); Walker v. Horn, 286 F.3d 705, 710 (3d Cir.2002). [6] Mo nteiro adduced sufficient evidence at trial from which a reasonable jury could conclude that Perkins-Auguste acted with a mo tive to suppress Monteiro's speech based upon his opp osition to the bud get. The jury saw the videotape of the meeting and heard the stridency of Perkins-Auguste's ad hominem attack on Monteiro . While M onteiro was arg uably disrupting the proceedings by interrupting her, he was also defending himself from a personal attack. FN4 It was Perkins-Auguste who changed the tone of the meeting from a debate about the merits o f the bud get to a quasi-prosecutorial forum.

me poor indeed." William Shakespeare, Othello (3.3.1807-181 1). M onteiro reminded Perkins-Auguste that his constitutional rights were at stake, stating: "I am not leaving Madam President. It's a violation o f my civil rights. It's a violation of my First Am endment rights." Perkins-Auguste demonstrated her own awareness when she apologized to the audience for ejecting him: "I am sadde ned 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 pro cedure for ejecting unruly memb ers. See sup ra note 2. The speed with which she determined to eject Monteiro from the meeting, her failure to consult her fellow council mem bers o r to nego tiate any compromise, and her failure to follow any established procedure could be viewed by a reaso nable jury as evidence that Perkins-Auguste's behavior was emo tionally 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 remo ved, in hand cuffs, against his will. [7] 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 Mo nteiro's speech on the basis of viewpoint. Qua lified imm unity does not req uire a p laintiff to demonstrate that the official's conduct was not reaso nable under any co nceivable set of circumstances. See *406Crawford-El v. Britton, 523 U.S. 574, 593-594, 118 S.Ct. 1584, 140 L.Ed.2d 759 (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 o f impro per intent."); see also Locurto, 264 F.3d at 169-170. When a constitutional violation depends on evidence of impro per intent, it is sufficient for the p laintiff to "identify affirmative evidence from which a jury could find ... the pertinent motive," in order to survive summary judgment on that issue. Crawford-E l, 523 U.S. at 600, 118 S.Ct. 1584.

FN4. Recall the wo rds 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

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After the jury returns a verdict, judg ment as a matter of law will be granted to the defendant only if that verdict is not ba sed o n 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 motiva tion for e jecting 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 ve rdict. W e see no error by the D istrict Court.

Mo nteiro v. City of Elizabeth, No . 01-1 844 , at 10 (D.N.J. Sept. 1, 2004). The cour t concluded that the memorand um 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 no t abuse its discretio n in admitting these two items of evidence. Abra ms, 50 F.3d at 1213 (3d Cir.1995). [9] The D istrict Court also rejected Perkins-Auguste's claim that it erred in submitting the question of punitive damages to the jury. W e see no erro r with resp ect to the $750 p unitive 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 *407 callous ind ifference to Plaintiff's rights in having him rem oved from the meeting. Therefore, the punitive damages award will not be vacated.

IV. [8] Perkins-Aug uste 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 followe d in eje cting 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 ob jections when it denied P erkins-Auguste's motion for a new trial. The D istrict Court admitted the evidence of Mon teiro's acqu ittal in the municipal court as evidence of dama ges because the bulk of M on teiro'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 interests of both parties. The import of the ac quittal, the c ourt no ted, was narro wly 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 pro per course of action in case a Council member became unruly. Perkins-Auguste admitted to having knowledge of the existence of this memo p rior to the Council meeting in dispute and admitted that she did not heed that advice in that memorandum.

V. For the foregoing reasons, the judgment of the District Court is affirmed. Co sts taxed against appe llant.

FISHER, Circuit Judge, dissenting. The majority characterizes the jury's finding of improper intent as the dispositive inquiry in assessing both the existence o f a constitutional violation and entitlement to qualified immunity. This reflects, in my view, a fundamental misunderstanding of the relationship of mo tive to the First Amendm ent and the doctrine of qua lified imm unity. 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. Ha rlow v. F itzgerald, 457 U.S. 800 , 806 , 102 S.Ct.

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2727, 73 L.Ed.2d 396 (1982). An official may not be held statutorily liable for a constitutional violation unless a reasonable person in the sam e position, with the same facts, would have und erstood th at 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 demonstrates a constitutional infringement. Disputed issues of histo rical 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 reaso nable 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).

339, 17 L.Ed.2d 235 (1966); Velez v. Levy, 401 F.3d 75, 97-98 (2d Cir.2005); DeGra ssi 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). *408 But, even if retaliatory motive is established, the leader may yet escape liability by demonstrating that there is no causation betwe en the im proper intent and the restrictions on the legislator's speech: i.e., that the legislator would have suffered the sam e restrictio ns in the absence of impro per intent. Crawford-El v. Britton, 523 U.S. 574, 593, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) ("[P]roof of an improper m otive 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, 120 S.Ct. 467, 145 L.Ed.2d 347 (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 viewpo int-biased and one of which was viewp oint-neu tral. A restriction imp osed as a resu lt 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, 1 05 (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 wou ld have reached the same decision even in the absence of the employee's protected speech.") (citing Crawford-E l, 523 U .S. at 592-93, 118 S.Ct. 1584). 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 , 97 S .Ct. 56 8, 50 L.Ed.2d 471 (1977), and Crawford-E l v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). It assumes instead that the jury's finding of unconstitutional motive dem onstrates, beyo nd cavil, the existence of a constitutional violation. It does not discuss whether, based on his repeated disruptions and

A. The leader of a legislative meeting, like a public employer or ow ner of a limited public forum , is constitutionally entitled to impose limitations on the expressive rights of participa nts 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, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Brennan v. Norton, 350 F.3d 399, 412-13 (3d Cir.2003). Speech may be limited on the basis of time, place, and m anner-and even c ontent; however, it may not be restricted on the basis of viewpoint. Parker, 646 F.2d at 853-54; see also Rosenberg er, 515 U.S. at 828-30, 115 S.Ct. 2510; 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 m embe r's First Amendm ent rights. Park er, 646 F.2d at 853-54; see also Bond v. Floyd, 385 U .S. 11 6, 13 5-37 , 87 S .Ct.

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noncompliance with procedural rules of the Co uncil, Monteiro would have been ejected from the meeting even if Perkins-Auguste had not harb ored an intent to punish him for his views. Perhaps the majority's reluctance to confront the issue stems from the D istrict 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-A uguste did no t obje ct 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). Neve rtheless, because causation constitutes an essential aspect of M onteiro's claim, and because Perkins-Auguste argues the matter in her briefs, we m ust 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 comm ents d uring P erkins-Auguste's speech. FN5 *409 He did not com ply 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.

in her favo r, I will assume that the jury could have reaso nably found -if given the opportunity-that the same actions would not have be en taken in the absence of improper intent. This conclusion, considered with the findings that M onteiro engag ed in protected speech and that Perkins-Auguste ac ted 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 "reaso nable person" is an objective ob server, who is aware of the facts know n to the official but possesses an independent know ledge of gov erning legal precep ts. See Harlow, 457 U.S. at 806, 102 S.Ct. 2727. Only when these rules clearly forbid the actions taken by the official will immunity be denied . Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (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 impro per 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 mo tive, would not have recognized a constitutional violation under clearly established law. Mihos, 358 F.3d at 105 ("[A] d efendant might prev ail ... in a case alleging an intent-based constitutional tort, without need to inquire as to her motives, if ... the relevant law was not clearly estab lished ....") (citing Crawford-E l, 523 U .S. at 592-93, 118 S.Ct. 1584). The opinion of the majority holds to the contrary. It

FN5. I will not quibble with the m ajority op inion's recitation of facts except to note that some of its characterizatio ns of the reco rd-p a r t i c u larly th e ch arg es that Perkins-Auguste "immediately leveled a pointed attack at Mo nteiro" and "changed the tone of the meeting from a debate about the merits of the budget to a quasi-prosecutorial forum ," - are less historical than hyperbo lical. However, because the burd en of p roof on this issue lies with Perkins-Auguste, see Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568, and the record does not comp el a finding

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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 Appe als for the Seco nd C ircuit, on which the majo rity relies: "[W]here ... specific intent is actually an eleme nt of the p laintiff's claim as defined by clearly established law, it can never be objectively re asonable for a government official to act with the intent that is prohibited by law." Locu rto 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 cond uct...." *410 Crawford-E l, 523 U.S. at 592-93, 118 S.Ct. 1584. An official may possess an unconstitutional motivation and yet b e 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 no t adeq uately explain that such maneuvers were so serious as to infringe on the individu al's rights. Mc Kee v. Ha rt, 2006 WL 2 7474, at *5-7 (3d Cir. Jan.6, 2006). Subjective intent may be co nsidered in the immunity analysis when it forms an element of the constitutional violation, but, eve n in these cases, it must not be given dispositive weight. Crawford-El, 523 U.S. at 592-93, 118 S.Ct. 1584. The court must still determine whether a reaso nable person in the same positio n wou ld have recognized the infringement under "clearly established" law. Id.

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 co nstitutional 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 do ing violates that right." Id. The opinion of the majority defines the right at issue in this case too b road ly. It states that a p ublic o fficial 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." 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, 107 S.Ct. 3034 (cautioning against defining the applicable legal rules at too high a "level of generality," without consideration of the "particularized" circumstances of the case). The majo rity 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 invo lved a claim of unconstitutional retaliation in the legislative context, see Bond, 385 U.S. at 135-37, 87 S.Ct. 339, and that case was resolved on other grounds, see id. at 137 & n. 14, 87 S.Ct. 339. Our own discussions on the subject have been cursory, see Larsen v. Sen ate 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, 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 ma jority's misunderstanding of the nature of the right to free expression. Neither the opinions of the District Co urt nor that of the m ajority

2. An infringement should be recognized by a reasonable person when it is fairly compelled by the facts of the case in light of relevant governing law. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034. Existing jurisprudence must offer an adequate explanation of the

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acknowledges that an official may defeat a prima facie claim of a First *411 Amendment violation by proving that the sam e actions would have been taken absent the improper motive. This principle, clearly established by Mt. Healthy and Crawford-E l, 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 actio n is reaso nably consonant with the legitimate goals of the forum. See, e.g., Bond, 385 U.S. at 135-36, 87 S.Ct. 339; Parker, 646 F.2d at 853-55; see also Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568. This princip le is not bo und 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 unru ly membe r whose obstreperous conduct prevents fulfillment of legislative duties.

prevented other members from concluding their remarks and effectively blocke d a final vote on the budget proposal. His cond uct was, in short, antithetical to the legitima te 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 M onteiro was constitutionally justified, regardless o f her actual underlying intent. See, e.g., Bond, 385 U.S. at 135-36, 87 S.Ct. 339; Parker, 646 F.2d at 853-54; see also Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568. She is thus entitled to qualified immunity. See Anderson, 483 U.S. at 638-40, 107 S.Ct. 3034. This conclusio n doe s not cast d oubt on the jury's verdict, or its findings that Perkins-Auguste was motivated by a desire to 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 laudab ly 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 ob jective obse rver, in the same position, would not have recognized a co nstitutional infringem ent. Crawford-E l, 523 U.S. at 592 -93, 118 S.Ct. 1584; Mihos, 358 F.3d at 105; see McKee, 20 06 W L 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 not have been aware . FN6 See, *412 e.g., Crawford-E l, 523 U.S. at 592-93, 118 S.Ct. 1584; Harlow, 457 U.S. at 818-19, 102 S.Ct. 2727.

3. I cannot conclude, on this backdro p, that a reasonable official in Perkins-Auguste's position should have realized that her conduct exceeded constitutional bound s. 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 C ou ncil p rior to Perkins-Auguste's speech and had b een warned against such co nduc t. W hen Perkins-Auguste started speaking, Mo nteiro imme diately interrup ted 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. Mon teiro's repeated disruptions rendered continuation of the meeting difficult, if not impossible. He

FN6. The majority also suggests that Perkins-Auguste forfeited the defense of qualified immunity by failing to file an interlocutory appeal from the D istrict Cou rt's denial of qua lified immunity on summary judgm ent. ("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 evidenc e."). This proposition is somewhat novel, and does not find supp ort in decisions from our circuit or others. See

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Chan v. Wodnic ki, 67 F .3d 1 37, 1 39 (7th Cir.1995) ("The trial has not mad e [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 qua lified imm unity] before trial, and we see little value in a rule of waiver that would force unw anted 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. II. The mantle of qua lified immunity will be denied to a pub lic official only when a reasonable person in the same situation would have recognized a constitutional infringem ent. Perkins-Auguste's conduc t, even if violative of M onteiro 's civil rights, was not so patently unconstitutional under existing caselaw as to deny her immunity. The majority conc ludes to the contrary. It does so based on a fundamental misinterpretation of the relationship of subjective intent to the First Amendm ent and the doctrine of qualified immunity. This error will, I fear, have unfortunate ramifications for our jurisprudence in these fields. I respectfully dissent. C.A.3 (N.J.),2006. Monteiro v. City of E lizabeth 436 F.3d 397 Briefs and O ther Related D ocuments (Back to top) · 04-3756 (Docket) (Sep. 23, 2004) END OF DOCUMENT © 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.