Response in opposition

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

CHARLES “CHED” MACQUIGG, ) )

Plaintiff, ) )

v. ) No. 1:12-CV-01137-MCA-KBM ) The ALBUQUERQUE PUBLIC ) SCHOOLS BOARD OF EDUCATION, ) MARTIN ESQUIVEL, in his individual ) capacity, DAVID ROBBINS, in his ) individual capacity, WINSTON ) BROOKS, in his individual capacity, ) STEVE TELLEZ, in his individual ) capacity, MONICA ARMENTA, in her ) individual capacity, RIGO CHAVEZ, ) Records Custodian. ) ) Defendants. ) ____________________________________)

PLAINTIFF’S RESPONSE IN OPPOSITION TO “CERTAIN DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION.

The Court’s Sua Sponte Order. When the Court entered the preliminary injunction

permitting the Plaintiff to resume attending APS Board meetings, it ruled that the Defendants

had been engaged in unlawful viewpoint discrimination and that Plaintiff had not been

disruptive. Doc. 114, Order Granting Prelim. Inj., pp. 10-13. In its sua sponte Order of

September 29, 2014 (Doc. 132), this Court directed the Defendants to re-state their motion for

summary judgment in such a way that the Court could understand, as to a given event, which

Defendants had “personally participated” in each of the alleged violations. If a Defendant did

not personally participate in the particular violation, that Defendant would likely be entitled to

Case 1:12-cv-01137-MCA-SCY Document 139 Filed 11/12/14 Page 1 of 58

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summary judgment on that basis. Id. at ¶¶ 1, 6, 9. In addition, the Court directed the Defendants

to explain, as to each Defendant, why that Defendant might be entitled to qualified immunity.

In their Re-Briefing of their motion for summary judgment, “Certain Defendants”

(“Defendants”) argue that they are entitled to summary judgment on all of Plaintiff’s claims

either because they did not personally participate in the violations of Plaintiff’s constitutional

rights or, if they did personally participate in those violations, they are entitled to qualified

immunity. In their statement of undisputed facts, the Defendants also implicitly ask the Court to

revisit its determination that it was Plaintiff’s “disruptiveness,” and not the content of his speech

or his viewpoint, that caused the Defendants to silence and expel him. See, Doc. 135, Defs’

Undisputed Facts Nos. 9, 14-17, 26-28, 30, 31, 33, 36, 40.

The parties’ stipulation as to personal participation. As to the issue of “personal

participation” by the various Defendants in the four events giving rise to Plaintiff’s claims,1

Plaintiff and the Defendants have agreed to stipulate for purposes of this litigation which

Defendants were participants in the events giving rise to Plaintiff’s claims.2 As to individual

participation in the events, the only remaining difference between the parties relates to Defendant

Winston Brooks’s involvement in the September 1, 2010 Banning Order. See Stipulation of the

Parties, filed on November 10, 2014. (Doc. 137, Ex. 29). This stipulation will obviate the

necessity of the Plaintiff or the Court addressed most of the assertions in Defendants’ brief that,

1 The four events are: (1) the November 4, 2009 expulsion from the regular Board meeting; (2) the August 19, 2010 exclusion from the meeting of the Board’s District Relations Committee during which a gubernatorial debate was held; (3) the expulsion from the Audit Committee meeting of August 25, 2010; and (4) the “Banning Order” of September 1, 2010 (Ex. 24). 2 With the exception of the participation in the “Banning Order” by Defendant Brooks, Plaintiff’s First Amended Complaint (Doc. 22) identified each Defendant who participated in the four events that give rise to Plaintiff’s claims.


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as to particular Defendants, there is insufficient evidence of personal involvement in one or

another of the particular events.3

Qualified immunity. As to the second issue – qualified immunity – to the extent that the

Defendants’ amended motion relies on the doctrine, the Court should deny it because, first, the

law on which Plaintiff relies to establish the constitutional violations was clearly established

when the Defendants expelled Plaintiff from public meetings, barred him from attending the

committee meeting that included the gubernatorial debate and banned him from future APS

Board meetings. Second, this Court has already concluded that the Defendants violated

Plaintiff’s First and Fourteenth Amendment rights. Doc. 114, Order Granting Prelim. Inj., pp.

10-13. Third, there is no legal basis for Defendants Esquivel, Tellez or Brooks to claim “advice

of counsel” as a basis for invoking qualified immunity as a defense to the claim arising from the

order indefinitely banning the Plaintiff from future Board meetings. Finally, Defendant

Robbins’s expulsion of Plaintiff from the Audit Committee meeting of August, 2010, violated

clearly established law related to the Plaintiff’s right to attend public meetings, regardless of

whether Defendant Robbins was or was not mistaken about Plaintiff’s role in the supposed

disruption related to another person’s failure to turn off his recording devise as the public

meeting was ending.

In summary: Some Defendants may not have sufficiently “personally participated” in

certain of the events, and are entitled to the benefit of the parties’ stipulation, which makes their

non-participation clear. No further action by the Court is necessary with respect to the “personal

participation” issue except as to Defendant Brooks’ participation in the “Banning Order.” In all

3 The parties’ stipulation, with the exception of the issue of Defendant Brooks’s involvement in the Banning Order, reflects the allegations of Paragraph 7 of Plaintiff’s First Amended Complaint (Doc. 22).


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other respects, the Court should deny Defendants’ Motion for Summary Judgment for the

reasons set forth above and below.

Defendants’ list of “undisputed facts.” As to Defendants’ statement of 48 “undisputed

facts,” most serve no purpose except to support Defendants’ continuing claim that it is

undisputed that their motive in excluding the Plaintiff from their public meetings was not the

content of Plaintiff’s speech but his supposed “disruption” of meetings and his supposed

threatening or irrational behavior at meetings. [Doc. 135, Def. Br., pp. 2-9.]4 The Defendants,

however, must be aware by now that continuing to claim that they kicked Plaintiff out of three

meetings and banned him from future meetings because of his “disruptiveness” can hardly be

characterized as an “uncontested fact.” It is not just contrary to the record, which contains a

mountain of evidence to the contrary, but is in the teeth of this Court’s opinion and order

granting a preliminary injunction, in which it ruled that the evidence established that the

Defendants did not ban the Plaintiff for the reasons they now claim, but did so because they did

not want to hear his criticisms anymore, thereby violating the Plaintiff’s rights under the First

and Fourteenth Amendments. See Doc. 114, Order Granting Prelim. Inj., pp. 10-13. Yet

Defendants continue to argue that it is undisputed that “[o]ver the past nine years, Plaintiff’s

disruptive conduct has led APS officials to eject Plaintiff from APS meetings on several

occasions…” Doc. 135, Defs’ Undisputed Fact No. 14). This Court explicitly found that the

evidence established that this assertion is not just contested, it is false. Doc. 114, Order Granting

Prelim. Inj., pp. 10-13.5

4 In this category are the following “undisputed material facts,” most of which the Defendants certainly know by now are disputed by record evidence: 14, 15, 17, 18, 19, 20, 23, 26, 27, 28, 30, 31, 32, 34, 36, 40, 41, 42, 43, 44, and 47. 5 “The Court finds that it was what Plaintiff said rather than any non-verbal conduct that offended the Board and led to his expulsion.” Doc. 114, Order Granting Prelim. Inj., p. 10.


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The Defendants, of course, may be free to continue to try to prove at a trial on the merits,

if the Court were to determine that one were warranted, that their motivation for banning the

Plaintiff stemmed from his supposedly disruptive conduct (if, also, the Court were to determine

that such evidence were even relevant and admissible in light of the videos and other undisputed

evidence). But for the Defendants to continue to argue that it is undisputed that the Defendants’

motives were unrelated to Plaintiff’s speech, and to continue to put Plaintiff in the position of

having to comb the record for the documents and testimony to rebut Defendants’ latest shopping

list of “undisputed facts” related to Defendants’ motives is an abuse of the summary judgment

procedure and a colossal waste of Plaintiff’s and the Court’s time.6

At the risk of plaguing the Court with more than it would like to hear about the

supposedly “undisputed” issue of Plaintiff’s supposedly disruptive conduct, Plaintiff respectfully

requests the Court to consider the following testimony of Brad Winter, who is now acting

6 Plaintiff does not seek sanctions for having to unnecessarily re-brief and re-dispute Defendants’ list of “undisputed facts” that the Defendants know perfectly well are disputed. Federal courts have repeatedly expressed exasperation, however, at the practice of filing motions for summary judgment when material facts are obviously disputed. One federal court reminded the parties of Rule 11 and cautioned them against moving for summary judgment “based upon obviously disputed facts.” McNabb v. Placid Oil Co. 1995 WL 258283, 4 (E.D.La.1995) (emphasis in original). See also, Brager & Co., Inc. v. Leumi Securities Corp., 84 F.R.D. 220, 222 (D.C.N.Y. 1979) (“As to plaintiff's motion for partial summary judgment upon its claims of antitrust violation, these are so obviously riddled with sharply disputed fact issues that not only is the motion, as the Magistrate reported, ‘devoid of merit,’ but one must question whether it was made with any serious purpose or prospect of success.”). Another Court criticized summary judgment motions that “turn the motion into a massive paper trial that only adds delay and expense because material facts are plainly in dispute.” Ford v. Lumbermens Mut. Cas. Co., 197 F.R.D. 365, 367 (N.D. Ill. 2000). Moreover, many, if not most of Defendants’ allegedly undisputed facts are not “material facts” for purposes of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (for purposes of summary judgment, “[a] material fact is one which may affect the outcome of the suit under the governing law.” Factual disputes regarding matters that are “irrelevant or unnecessary” are not germane in the summary judgment context). Here, for example, why is it a “material fact” that plaintiff attends APS meetings to “gather information for his blog and to express his views about APS”? Doc. 135, Defs’ Undisputed Fact No. 11. Why is it material that the gubernatorial debate was broadcast on various media outlets? Id., No. 21. In what way can these supposedly undisputed material facts affect the outcome of this litigation? The same holds true for Defs’ Undisputed Facts Nos. 1, 2, 3, 4, 6, 7, 10, 12,13,24, 25 and others.


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Superintendant of APS and who was at the time Chief Operating Officer of APS, who had

attended most Board meetings during the six years before his deposition. Ex. 7, Winter Dep., at

3: 12-16, 5: 11-13. He testified about the nature of Plaintiff’s so-called “disruptive behavior”

and his testimony fully supports this Court’s analysis:

Q. I think you testified that the first time Mr. MacQuigg came onto your radar was with the elephant mask; is that correct?

A. Yes Q. And nothing before that ever came to your attention as something that Mr.

MacQuigg had done that was disruptive, had it? A. No. The only thing I remember is he would be there for public comment. Q. And did he do anything disruptive during public comment that you can recall? A. Just – not – just disrespectful comments. Like going over his time a couple of

times, but that’s all I remember. Q. When you say “disrespectful comments” what do you mean by that? A. Rude comments about different things, and asking questions, just that kind of

stuff. Q. Do you remember what rude comments he made? A. The only thing I remember is some of the stuff about Character Counts - - bringing

up Character Counts issues. Q. And those were rude comments? A. Just the rude part was asking – just asking questions. That’s it. Q. Would you explain for the record, please, what is rude about asking questions? A. Basically. Q. So the court reporter can get it down, what is rude about asking questions regarding

Character Counts? A. It is not rude, but usually during public comment you can ask questions, but you

don’t expect an answer. Public comment is to give comment. It is not to ask questions of board members or councilors.

Q. So you can ask questions but you shouldn’t expect a response? A. Yes, sir. …. Q. Can you give me – other than what you characterize as the disruption of the

elephant mask by Mr. MacQuigg, can you give me any other examples in which he was disruptive of a school board meeting?

A. yes. Q. Please do so. A. I was present at the internal audit meeting. Q. I’m sorry to interrupt you. I’m going to get to that in a minute, but I want to start

with the school board itself? A. Are you referring to the school board meetings? Q. Yes, I am. A. Not that I can recall.


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Q. Do you attend most meetings? A. Yes, sir.

Ex. 7, Winter Dep., 10-12, passim; 15: 25 – 16: 20. Mr. Winter’s testimony, as the Court is

aware, comports fully with the videos of the Board’s meetings. It is a continuing mystery how

the Defendants can assert that Plaintiff was disruptive, much less tell the Court that it is

undisputed that they expelled the Plaintiff from meetings and banned him indefinitely for

“disruptive behavior.”7

Moreover, Defendant Esquivel himself, the author of the September 1, 2010 Banning

Order and who, as Chair, expelled Plaintiff from the November 4, 2009 meeting, made the

following admission in his responses to Plaintiff’s earlier Statement of Undisputed Material

Facts: After admitting that he stopped Plaintiff from speaking at the November 4, 2010 Board

meeting and expelled him, Defendant Esquivel stated: “Defendant disputes Plaintiff’s

oversimplification of the reasons he was removed, which included violation of the Board’s

policy on discussion of personnel issues, but also included violation of the Board’s policy on

personal attacks and the disruption that those violations created in the meeting.” Ex. 25

[Esquivel’s November, 2013 response to Plaintiff’s Statement of Undisputed Material Facts, ¶

12.] In the same document, Defendant Esquivel admitted that the content of Plaintiff’s

comments “can be considered matters of public concern, but disputes the idea that Plaintiff’s

personal attacks on Board members and APS employees should be considered matters of public

concern.” Id., at ¶ 9. In other words, the Defendants admit that the “disruption” Plaintiff caused

was the exercise of what this Court has found to be his First Amendment rights, by uttering

7 See also Mr. Art Melendres’ testimony about the behavior the Board considered disruptive. Ex. 10.


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protected speech during public comment.8 On what possible basis do Defendants continue to

argue that it is undisputed that Plaintiff was “disruptive” and was kicked out and banned for that

reason, and require the Plaintiff, once again, to marshal evidence to dispute this claim?9 The fact

that they are doing it again, after this Court has considered the evidence and determined

otherwise, is insupportable.

II. RESPONSE TO DEFENDANTS’ STATEMENT OF “UNDISPUTED” MATERIAL FACTS.

For reasons set forth in the introduction, neither Plaintiff nor the Court should be required

to labor, again, through a list of supposedly undisputed facts that Defendants well know are

disputed, particularly the many “undisputed facts” that relate to their motives and Plaintiff’s

supposedly “disruptive” conduct. This Court has already ruled that the Defendants barred the

Plaintiff from their meetings because of his speech and that Plaintiff was not disruptive.

Nevertheless, under Fed. R. Civ. P.56(e)(2), if the plaintiff does not respond to any of

defendants’ “undisputed facts,” plaintiff faces the prospect of having them deemed undisputed.

Accordingly, Plaintiff responds as follows to Defendants’ list of “undisputed facts.”

8 That the Defendants are simply playing hide and seek with these key facts regarding their unlawful policies is revealed vividly by the colloquy leading up to Plaintiff’s expulsion from the November 4 meeting (set forth verbatim at Paragraph 49 of the Verified Complaint, Doc. 22), showing that Plaintiff was expelled for “addressing board members,” “addressing us individually and then “cross[ing] the line” by mentioning the name of an administrative employee in attendance. “We’ve told you not to address personnel issues….You can leave…You are done. You are done. You’re done…Goodbye.” Id. In “Certain Defendants’ Response In Opposition to Plaintiff’s ‘Motion for Partial Summary Judgment’ Relating to Plaintiff’s Federal Claims, at pp. 3-4 (Ex. 26), however, the Defendants recast their policy. “The policy against personal attacks does not restrict speakers from speaking critically about APS Board members or employees….The policy merely prohibits personal attacks which are disruptive and run the risk of creating disorder at APS Board meetings.” (Emphasis added.) This, taken together with the transcript of the November meeting, show that their policy is this: You can criticize individual Board members and employees so long as your statements do not anger us. 9 See Reply in Support of Motion for Preliminary Injunction, Doc. 70, Statement of Undisputed Material Facts in Support of Motion for Partial Summary Judgment, Doc. 83, Response to Defendants’ statement of “undisputed material facts,” Doc’s. 94 and 95, and this Response.


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1. Plaintiff is a former APS teacher who twice sued APS relating to issues arising

out of his employment. Undisputed/Irrelevant.

2. After Plaintiff ceased working for APS in 2004, he began attending APS

meetings, including APS Board meetings. Undisputed.

3. APS holds Board meetings bi-weekly, and those meetings are generally held in

the Boardroom at APS's main office located at 6400 Uptown Blvd. Undisputed/Immaterial.

4. APS's Board meetings usually contain a 30-minute period for public comment

during which speakers are permitted two minutes to express their views to the APS Board.

Partially admitted. At present, the two-minute time allotment only applies if fewer than 15

speakers have signed up to speak. If 15 or more speakers have asked to address the Board, each

is permitted only one minute in which to speak. “Comments are limited to either 2 minutes or 1

minute, depending on the number of speakers who sign up to speak.” http://www.aps.edu/about-

us/board/about-board-meetings (last accessed 10/30/14)

5. Plaintiff has often spoken during the public comment period of APS Board

meetings. Undisputed.

6. Plaintiff's primary interest in attending APS Board meetings appears to arise out

of his desire for the APS Board to follow the tenets of a program called "Character Counts."

Disputed. While Plaintiff’s advocacy for the tenets of Character Counts! is undeniable, there are

numerous other reasons Plaintiff has stated for attending APS Board meetings, including

gathering information related to the Board’s budgeting and financial decisions, keeping abreast

of personnel and law enforcement issues, and providing input about the administration of the

APS whistleblower program. See Am. Verified Compl. [Doc22] at §§33, 38.

7. Plaintiff professes to be a devotee of Character Counts - having referred to


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Character Counts as his "religion" and having testified that the program amounts to "a hill worth

dying on." Ex. A, at 139:1-140:25. Partially Disputed/Immaterial. Plaintiff did not describe

Character Counts! as “his religion.” Rather, he used the term “religion” in the context of

describing why he believes the Character Counts! program is beneficial to students at APS. At

his deposition, Plaintiff summarized his views about the Character Counts! program and

included the words attributed to him, which are taken out of context. His statement regarding

Character Counts! in context, is attached as Exhibit A at 139:1-140:25. Plaintiff has no idea why

Defendants would include this as an “undisputed material fact” entitling them to summary

judgment. Rather, it appears to be an effort by Defendants to continue to characterize Plaintiff as

obsessive about the Character Counts! program and somehow dangerous for that reason.

8. Since 2004, Plaintiff has spoken to the APS Board regarding Character Counts at

50 to 100 different meetings. Ex. A, at 80:15-23. Undisputed/Immaterial/Misleading. As the

videotapes of the relevant meetings show, Mr. MacQuigg mentioned Character Counts! at

several public meetings, but his topics varied from meeting to meeting. For instance, Mr.

MacQuigg used Character Counts! as a vehicle to discuss the Board’s extravagant spending at its

headquarters, misconduct by APS police officers, and the failure to conduct a transparent audit.

See Ex 13, Lodging of Exhibits, Disk A, showing Plaintiff’s presentations during Public Forum,

as APS 001, APS 002. As Plaintiff explained in his affidavit, he carefully crafted his comments

to comply with the Board’s rules of “decorum.” Ex. 11, MacQuigg Affidavit of 09/23/13.

9. Plaintiff has testified that he intends to repeat his views to the APS Board until he

gets a response; he has undertaken additional efforts to "up[ ] the ante" and to "do[] something

that they couldn't reasonably ignore." Ex. A, at 77:1, 11-15. Disputed/Misleading. Defendants

mischaracterize Plaintiff’s testimony. In the deposition testimony Defendants’ reference,


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Plaintiff testified that he went to the Albuquerque Journal to encourage them to report about the

Board’s refusal to stand as role models for APS students. When the Albuquerque Journal did not

write an article about the issue, Plaintiff testified that he made an effort to “up the ante” by

donning an elephant mask at an APS Board meeting. He thought this was an act of speech the

media could not reasonably ignore. See Plaintiff’s complete answer to Defendants’ questions

concerning why he wore the elephant mask at Ex. 1, MacQuigg Dep., at 76:21 – 77:24.

10. In addition to regular Board meetings held at 6400 Uptown Blvd., APS routinely

holds public meetings at various locations throughout the school district. Since 2004, Plaintiff

has attended many of these APS meetings as well. Ex. A, at 17:23-18:10.

Disputed/Immaterial/Misleading. Defendants have not offered any evidence for their assertion

that APS routinely holds public meetings of the APS Board at locations other than 6400 Uptown

(APS headquarters). By APS policy and practice, the Board’s public meetings are open to the

public and at regular meetings, include time for public participation. Ex. 17, from APS Board

website, at http://www.aps.edu/about-us/board/about-board-meetings (last accessed 11/05/14).

In the deposition testimony referenced by Defendants, Plaintiff testified that most public

meetings are held at 6400 Uptown (the APS headquarters). He specifically recalled one

exception—the District Relations Committee meeting that was held in conjunction with a

gubernatorial debate at Eldorado High School in 2010. Plaintiff had a vague recollection that

some of the Board’s committee meetings were occasionally held at locations other than 6400

Uptown. Ex 1, MacQuigg deposition at 17:16-18:10. Defendants’ statement is misleading

because the meetings they claim were not at 6400 Uptown were not regular Board or committee

meetings within the meaning of Board policy. They were community meetings set up by APS to

discuss policy issues affecting APS. These meetings are not subject to the Board’s open meeting


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and public participation policy and at which Plaintiff could speak. It is true that Plaintiff was able

to attend these community meetings after the issuance of the Banning Order. But Plaintiff was

not allowed to attend any public meetings of the APS Board after the issuance of the Banning

Order. See [Doc. 22-1] Banning letter of 09/01/10; Ex. 4, Tellez Dep., 67:14-16,68:15-18,

72:13-19; Ex. 3, Esquivel Dep., 251:7-11, 253:6-254:22; Ex 2, Brooks Dep., 130:11-25, 137:12-

21.

11. Plaintiff claims he attends APS meetings to gather information for his blog and to

express his views about APS. Ex. A, at 6:2-7: 10. Partially Disputed. Plaintiff has stated that

these are his primary reasons for attending APS Board meetings. There are, however, other

issues of interest to him. Plaintiff testified, for example, that he attended any meeting that had to

do with community input on goals, bullying, or issues of standards and accountability. See Ex.1,

MacQuigg Dep., 5:16 - 6:1; also, Am. Ver. Compl. [Doc22] at §§33, 38.

12. Plaintiff speaks publicly to other groups regarding his views of APS whenever he

gets the chance (Ex. A, at p. 128:3-5; Ex. B, PI's Ans. to APS's lnts., at No.3); Plaintiff has

written opinion pieces to various newspapers about APS (Ex. A, at p. 125:13-24; Ex. B, at No.3);

Plaintiff frequently emails to APS Board members and officials regularly express his views (Ex.

C, Affidavit of Rigo Chavez); and Plaintiff has run unsuccessfully for the APS Board on two

occasions. Ex. A, at 27:23-28:3. Admitted/Irrelevant. Defendants are implying that Plaintiff has

other channels of communication to express his views other than at APS Board meetings.

Defendants have testified that they ignore him and do not read his blog. See Ex. 2, Brooks Dep.,

pp. 20-21; Ex. 6, Robbins Dep., pp. 55-57; Ex.3, Esquivel Dep., p. 29; Ex.8, Yager Dep., p. 108;

Ex.1, MacQuigg Dep., at pp. 109, 114-115. But even if this were undisputed, the same could be

said of any other member of the public. Furthermore, what does Plaintiff’s other forms of


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expression have to do with the issues in this case, other than to establish, once again, that the

Defendants simply wish this Court to give them permission to exclude Plaintiff from their

meetings because they do not want to hear what he has to say?

13. Initially [Plaintiff] attended and spoke at the [APS] Board's public meetings. He

attended regularly and spoke when able, but he soon found that the public meetings provided a

limited forum for the expression of his views on topics he found important. He accordingly

turned to the internet. Pl's Motion for Preliminary Injunction [Doc. No. 24], at p. 4.

Undisputed/Immaterial.

14. Over the past nine years, Plaintiff's disruptive conduct has led APS officials to

eject Plaintiff from APS meetings on several occasions, most often from APS Board meetings at

6400 Uptown Blvd. Ex. B, at No. 1. Disputed. The support Defendants’ cite for this assertion is

Plaintiff’s Answer to Interrogatory No. 1 in which Plaintiff lists the meetings from which he was

ejected or prohibited from attending, and the reasons for the exclusions. See Ex. 14, [Answer to

Interrogatory No. 1]. The relevant meetings are as follows:

On December 6, 2006, Plaintiff was ejected from a regular Board meeting for speaking about issues of accountability.

On December 21, 2006, Plaintiff was ejected from a regular Board meeting for speaking about issues of accountability.

On January 4, 2007, Plaintiff was ejected from a regular Board meeting for protesting the removal of the “public forum” from the public record.

On January 17, 2007, Plaintiff was ejected from a regular Board meeting for protesting the removal of the “public forum” from the public record.

On February 20, 2008, Plaintiff was ejected from a regular Board meeting for wearing an elephant mask at the back of the Board room.

On December 19, 2008, Plaintiff was barred from APS headquarters for making a request for public records.

On May 18, 2009, Plaintiff was ejected from an APS press conference. On November 4, 2009, was ejected from a regular Board meeting for discussing

personnel issues and using individual’s names during his speech. On August 19, 2010, Plaintiff was barred from attending a District and Community

Relations Committee meeting (held in conjunction with a gubernatorial debate) because


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he did not have a valid entry ticket and because Defendants assumed he would be disruptive.

On August 25, 2010, Plaintiff was ejected from an Audit Committee meeting for allegedly recording the meeting (which was not true as Plaintiff was not recording the meeting) and acting in a disruptive way (which is also not true).

Plaintiff was barred from attending all regular and committee meetings of the APS Board after issuance of the Banning Order on September 1, 2010. Id.

Defendants have not offered any evidence to suggest that any of the ejections or bans were

lawful, or that Plaintiff was disruptive or threatening at any of these meetings. The record

contains video of several of Plaintiff’s statements to the Board, all of which demonstrate that

Plaintiff has never done or said anything during the public meetings of the Board (or anywhere

else for that matter) that could be construed as threatening, disruptive, or inappropriate in any

way. Ex. 13, Lodging of Exhibits, DVD Disk A, at APS 001, APS 002, APS005.; Ex 7, Winter

Dep. pp. 10 -12, 15-16; Ex. 11, MacQuigg Affidavit of 09/23/13; Ex. 1, MacQuigg Dep., pp 177-

180; [Doc 114, Order on Preliminary Injunction].

15. In an effort to address Plaintiff's conduct that they viewed as disruptive,

Defendant Esquivel Esquivel and Defendant Tellez met with Plaintiff in 2008 or 2009. However,

those meetings did not result in any significant change in Plaintiff's behavior. Ex. D, Esquivel

Dep., at 69:9-71:15. Disputed. Nothing in the testimony cited by Defendants establishes, or

even suggests, that Defendant Esquivel met with Plaintiff to address Plaintiff’s allegedly

disruptive behavior at Board meetings. Defendant Esquivel’s description of the meeting suggests

that the meeting was intended to persuade Plaintiff that the Board was listening to his criticisms.

Furthermore, this Court has already held that Plaintiff’s “behavior” that Defendants characterize

as “disruptive” was protected speech and not disruptive. Doc 114, Order on Preliminary

Injunction.

16. Prior to the public comment portion of every APS Board meeting, the APS Board


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Secretary reads the following statement: "Speakers must conduct themselves in a professional

manner ... Disruptive or disrespectful behavior will not be tolerated. If you cannot comply with

these rules of decorum, then you will be asked to return to your seat or asked to leave at the

Board President's discretion." Ex. F, Policies Related to APS Board Meetings. Partially

Disputed. While it may be true that the Board is supposed to read the above-mentioned

statement before the public forum portion at all regular meetings of the Board, the video and

audio recordings of the Board meetings that are a part of the Court record establishes that the

statement was omitted from the script, and not read in full at any of the Board meetings. See

Ex.13, Lodging of Exhibits, DVD Disk A: APS001, APS002, APS005.

17. On multiple occasions during Board meetings, outside of the public comment

portion of the meetings, Plaintiff has spoken out of turn, shouting comments and objections.

These outbursts have disrupted meetings and occasionally have resulted in Plaintiff's ejection.

Ex. A, at177:11-180:4; 181:20-25.; Ex. D, at pp. 114:1-3, 118:18-121:23, 123:3-125:11; Ex. E,

Tellez Dep., at pp. 128:14-130:21. Disputed. Plaintiff testified that he spoke outside of the

public comment period twice, two years before Defendants’ issued the Banning Order. On both

occasions Plaintiff did this because Board members had directed specific comments to him, and

both times the Board did not eject him from the meeting, nor is there any evidence that he

disrupted either meeting. Plaintiff denies that he shouted. He spoke only loud enough for the

Board members to hear him. Ex.1, MacQuigg Dep., pp. 177-180; Ex. 11, MacQuigg Affidavit of

09/23/13.

18. APS hosted a gubernatorial debate on August 19, 2010. Due to space limitations,

attendance was limited to those who were on the attendance list and were issued a ticket by APS.

Ex. E, at 150:21-151:13; Ex. G, Armenta Dep., at 139:25-140:9; 142:5-144:25; 145:22-146:20;


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and 156:8-12. Disputed/Incomplete. It is true that APS hosted a gubernatorial debate, but the

gubernatorial debate was held in conjunction with a properly noticed public meeting of the APS

Board District Relations committee. The notice for the public meeting is attached as Ex. 15. It is

well established that all public meetings of the APS Board including committee meetings, are

open to the public in accordance with the New Mexico Open Meetings Act, NMSA 1978, §§ 10-

15-1 et seq. See Ex. 17, APS Board website, “About Board Meetings,”

http://www.aps.edu/about-us/board/about-board-meetings (last accessed 11/5/14). APS departed

from its usual practice of allowing anyone to attend by requiring attendees to possess a ticket to

enter the public meeting. Defendants claim this was due to space limitations. Ex.5, Armenta

Dep., 139:2 – 142:7. Although not reflected on the meeting notice, Defendants Brooks and

Armenta also testified that they personally selected the citizens who could attend the public

meeting by placing their names on a list, contrary to the Board’s longstanding policy and practice

of allowing anyone wishing to attend a public to enter the meeting room. Id., also Ex. 2, Brooks

Dep., at 139; 147-148. Defendants Brooks and Armenta further testified that APS allowed some

individuals into the public meeting even though their names were not on the admittance list. Id.

Defendants admit that Plaintiff presented a valid entry ticket, but they prevented him from

entering the public meeting because his name was not on the pre-approved list and because they

assumed he would cause a disruption. Ex. 2, Brooks Dep., 143-149; Ex. 5, Armenta Dep., 142-

152.

19. Plaintiff did not attempt to request a ticket from APS, but rather sought a "press

pass" (Plaintiff contends he is a member of the "press" by virtue of the operation of a blog). Ex.

A, at 206:2-8. Disputed/Irrelevant/Misleading. It is not relevant whether Plaintiff requested

an entry ticket from APS as nothing in the factual records suggests that Plaintiff was required to


17

request a ticket from APS. The Notice of the District Relations Committee meeting states that

“Entrance to the gubernatorial debate is by ticket only[.]” Ex.15 (notice of meeting/debate), and

Plaintiff had a ticket. Furthermore, as explained in Plaintiff’s response to Undisputed Fact 18

above, APS’s policies did not require Plaintiff to possess an entry ticket to attend a public

meeting of the APS Board, including committee meetings. Ex 16, 17 (polices, and APS Board,

About Board Meetings). It is undisputed that Plaintiff obtained a valid entry ticket from a public

official, Janice Arnold-Jones. Ex. 1, MacQuigg Dep., 205:11-16, 207:17-21. Plaintiff presented

the ticket to APS officials but was denied entry to the public meeting. Ex. 5, Armenta Dep.,

152:17-25; Ex. 2, Brooks Dep., 143:20 -144:21; Ex. 4, Tellez Dep., 150:21-151:13; Ex. 13,

Lodging of Exhibits, Disk A, at SUNP 0004 (APS Police officer announcing Plaintiff would be

denied entry despite holding a ticket). Furthermore, it is not relevant whether Plaintiff is a

member of the press or not. Plaintiff claims that his First Amendment rights were violated

because he was denied entry to the public meeting and the evidence establishes that Defendant

Brooks and Armenta denied him entry in retaliation for the exercise of his First Amendment

rights and on the basis of viewpoint discrimination. See excerpts of Brooks and Armenta

depositions set forth at pp. 48-50 below, incorporated here. Ex. 2, Brooks Dep., pp. 144-149; Ex.

5, Armenta Dep., 154: 11-21.

20. Ms. Armenta, who helped organize the debate from APS's end, explained in her

deposition that APS denied requests for press passes from numerous bona fide members of the

press due to limited space at the debate. Ex. G, at 145:22-146:20. Partially

Disputed/Irrelevant. Plaintiff does not dispute that Defendant Armenta testified that members

of the press were denied press passes to the public meeting because of space limitations. Her

testimony is irrelevant, however, because Plaintiff should have been allowed to enter to the


18

public meeting because (1) it was an open meeting and (2) because he had a valid ticket.

Defendants Brooks and Armenta could not lawfully pick and choose who they wanted to attend

the public meeting, and, even if they lawfully could, they could not deny Plaintiff entry based on

their worry that he might cause a “disruption,” which is Defendants’ euphemism for Plaintiff’s

prior exercise of his First Amendment rights.

21. The debate was broadcasted live through several media sources and covered by

the major local television news outlets; additionally, several sources, including APS, made video

of the debate available in its entirety. Web links to those sites still exist, though in some cases the

video itself is no longer accessible. See http://www.koat.com/Education-Focus-

OfFirstGubernatorial- Debate/6136802 C'KOAT.com willlivestream the debate"), last accessed

October 16, 2014; http://www.newmexicopbs. org/productions/newmexicoinfocus/governor-

candidatedebate-watch-it-live/, last accessed October 16, 2014; http://www.aps.edu/2010-

debate/2010-aps-gubernatorial-education-debate-video, last accessed October 16,2014.

Undisputed/Irrelevant. While Plaintiff does not dispute that the public meeting was carried live

on television and the internet, this does not validate Defendants’ decision to exclude Plaintiff

from the public meeting. As explained in Plaintiff’s responses to Undisputed Facts 18, 19 and 20,

Plaintiff should have been permitted to enter the District Relations Committee meeting because it

was a public meeting open to the public and because he had a ticket. The mere fact that the

public meeting was broadcast live does not suspend Plaintiff’s rights, or enable the Defendants to

exclude him on the basis of his viewpoint, as the Court has held. As noted above, in Undisputed

Facts Nos. 18 and 19, there is substantial evidence that Defendants Brooks and Armenta

excluded MacQuigg because of what this Court has already found to have been his protected

speech. See Doc. 114, Order on Preliminary Injunction.


19

22. When Plaintiff was unable to obtain a press pass from APS, he obtained a ticket

that had been issued to another person. Ex. A, at 205: 11-206:8.

Undisputed/Irrelevant/Misleading. This fact, although undisputed, is irrelevant to the issues

before the Court. Defendants have not presented any evidence that the ticket was not

transferrable. In fact, the notice for the public meeting simply stated that “Entrance to the

gubernatorial debate is by ticket only[.]” Ex. 15; (meeting notice); Ex.1, MacQuigg Dep., pp.

205-212; Ex.5, Armenta Dep., pp. 142. The Notice does not say that entrance to the debate was

by invitation. Moreover, the ticket was not merely given to “another person.” It was given to a

public official, Janice Arnold-Jones. It was reasonable for Ms. Arnold-Jones to transfer the ticket

to one of her constituents, which is what she did. Ex.5, Armenta Dep., 152:16 – 153:3. Indeed,

Defendants testified that some individuals were allowed to attend the public meeting even

though they were not on the pre-approved list. Id. at pp. 142-144.

23. Plaintiff attempted to attend the debate, but Mr. Brooks made the decision to deny

Plaintiff entry because Plaintiff had not been issued a ticket and was not on the attendance list.

Ex. G, at 151:17-152:22,156; Ex. I, Brooks Dep.,144:8-17. Partially Disputed/Incomplete. As

explained in Plaintiff’s responses to Undisputed Facts 18 through 22, Plaintiff obtained a ticket

from an elected public official, Janice Arnold-Jones. Defendants allowed some individuals to

attend the public meeting even though they were not on the attendance list. Ex. 2, Brooks Dep.,

143:20 - 145:18. Also, as previously established, Defendants did not permit Plaintiff to enter the

public meeting because they believed he might be disruptive. See Ex. 4, Tellez Dep., 151:10-13;

Ex. 2, Brooks Dep., pp. 147 – 148, 150:22 – 151:6; Ex. 5, Armenta Dep., pp.142 – 144, 151:17 –

153:3. See also, Ex.13, DVD disk A, video: Eldorado Education Debate August 2010

(MacQuigg001745) at SUNP0004 (showing APS police officer evicting Plaintiff was doing so


20

upon orders of Superintendent Winston Brooks, despite having a valid ticket). See also

Defendants Brooks and Armenta deposition excerpts cited in response to Undisputed Fact No.

18, regarding their motives in excluding MacQuigg.

24. Prior to the debate Plaintiff met with his associate, Mark Bralley (a person who

regularly attends APS meeting with Plaintiff and who sometimes takes photographs for

Plaintiff’s use on his blog), and they discussed their belief that Plaintiff would be denied entry.

Ex. H, Bralley Dep., 148:11-149:8, 216-18. Disputed/Irrelevant/Misleading. It is not relevant

whether Plaintiff believed he would be denied entry to the public meeting. Moreover, the

allegation is not true. Plaintiff had no reason to believe he would not be allowed to enter the

public meeting. The testimony Defendants’ cite for this contention, when read in context,

establishes that it was Mr. Bralley’s belief, not Plaintiff’s, that Plaintiff would be denied entry to

the public meeting. But even if Defendants’ allegation were true, what relevance does it have on

whether Plaintiff was wrongly denied entry to a public meeting? Finally, it is irrelevant whether

Mr. Bralley took photographs for Plaintiff’s blog. While Mr. Bralley and Plaintiff are friends,

they are not business partners and act independently. See Ex. 12, MacQuigg Affidavit of

11/7/14; Ex.9. Bralley Dep., pp. 81-84. They are citizens who happen to share an interest in the

business of the State’s largest school district, APS. Id. at 84; Ex. 3, Esquivel Dep. 78:22 – 79:22.

25. Mr. Bralley then provided Plaintiff with a lapel camera in order to record his

attempt to enter the debate. (Ex. H, Bralley Dep., 148:23-149:4, 216:1-7). Disputed/Irrelevant.

The lapel camera in question was, in fact, a birthday gift to Plaintiff. Mr. Bralley did encourage

Plaintiff to wear the camera to the debate. Ex.12, MacQuigg Affidavit of 11/07/14.

26. Soon after, at an Audit Committee meeting on August 25, 2010, which Plaintiff

attended with his associate Mr. Bralley, Plaintiff attempted to stand in an area of the room not


21

open to the public, and directly behind Superintendent Brooks. (Ex. D, at 105:2-4; Ex. J, Robbins

Dep., at 139:18-21). Disputed/Immaterial. The allegation is immaterial because Plaintiff was

not ejected from the Audit Committee meeting for standing in an area of the room he was not

supposed to stand in, or standing behind Defendant Brooks. Ex.12, MacQuigg Affidavit of

11/7/14. Defendant David Robbins ejected Plaintiff from the Audit committee meeting after

another individual, Mr. Bralley, allegedly ignored Defendant Robbins’ order to not use a

recording device at the meeting. See Order Granting Preliminary Injunction [Doc 114]. The

ejection took place well after the events described in Defendants’ Undisputed Fact 26. Ex.18,

Transcript of Mr. Robbins’ directive to move equipment prior to start of Audit Committee

Meeting; also, Ex. 13, DVD disk B, Audio of same, at (MacQuigg001743) Track 02.

Defendants’ decision to eject Plaintiff from the public meeting was improper because Plaintiff

did not do anything to disrupt the meeting. As reflected in the videotaped recording of the

exchange between Defendant Robbins, Mr. Bralley, and Plaintiff , Mr. Bralley admitted to

Defendant Robbins that he was the one who had left his recording device on after Defendant

Robbins instructed the audience to turn off all recording devices. Ex.13, Lodging of Exhibits,

DVD Disk A, at APS0006, audio at MacQuigg001743, Track 04. Mr. Bralley later testified at his

deposition that he, not Plaintiff, had left his recording device on and that he did not record any

portion of the executive session. Ex. 9, Bralley Dep. pp. 213-215, Finally, after ejecting Plaintiff

from the meeting Defendant Robbins made a statement suggesting that he ejected Plaintiff for

disparaging statements he had made about individuals associated with APS. Ex.13, at DVD Disk

B, MacQuigg001743, Track 04; Ex. 19 (Transcription of closing remarks by Mr. Robbins). This

is further proof that Defendant Robbins ejected Plaintiff from the meeting not because Plaintiff


22

was disruptive, but because Defendant Robbins disagreed with the things Plaintiff had previously

said.

27. When Superintendent Brooks expressed his discomfort, the Chairman of the

Audit Committee, Board member David Robbins, asked Plaintiff to move. Instead of moving

immediately, Plaintiff argued with Mr. Robbins, disrupting the meeting. Ex. D, at pp. 210:17-

212:5; Ex. J, at pp. 130, 133. Disputed/Immaterial. See Plaintiff’s response to Undisputed Fact

26. This alleged event, which Plaintiff disputes in his response to Undisputed Fact 26, took place

well before Plaintiff was ejected from the Audit Committee meeting. Moreover, the evidence

shows that there was no disruption. The Board had not designated the area of the room Plaintiff

was standing as “off limits.” When Defendant Robbins asked Plaintiff and Mr. MacQuigg to

move, they did as asked, and Defendant Robbins thanked them. There is no evidence that

Defendants used this alleged event as a basis for ejecting Plaintiff from the Audit Committee

meeting. Ex.18, Transcript of Mr. Robbins’ directive to move equipment prior to start of Audit

Committee Meeting; see also, Ex. 13, DVD disk B, Audio of same, at (MacQuigg001743) Track

02. Ex. 13, Disk B, at MacQuigg001742 (video of ejection from Audit Committee meeting);

Ex.19 (Transcript of closing remarks by Def. Robbins); and Ex.12, MacQuigg Affidavit of

11/07/14.

28. Later in the meeting, after Mr. Robbins told all attendees to turn off their

recording devices and to leave the room so that the Audit Committee could go into closed

executive session, Plaintiff and Mr. Bralley stalled, and continued recording, again disrupting the

meeting. Ex. D, at 210:17-213:24,217:19-218:25; Ex. J, at 135:10-136:3, 139:23-141:20.

Disputed/Immaterial. There is no evidence that Plaintiff disrupted the Audit Committee

meeting by using a recording device. See Ex. 13, Lodging of Exhibits, Disk B, audio and video


23

of Audit Committee meeting. Defendant Robbins’s statements at the end of the public meeting,

after Plaintiff had already been ejected, could cause a reasonable jury to find that Defendant

Robbins ejected Plaintiff from the meeting room because of things Plaintiff had said about

Defendants in the past. Id.; also Ex. 19, Transcript of closing remarks by Def. Robbins.

29. When Plaintiff and Mr. Bralley returned after the closed session, Mr. Bralley

admitted that he had refused to turn off the recording device at the time instructed, and both

Plaintiff and Mr. Bralley were ejected from the meeting. Ex. J, at 135:10-136:3, 139:23-141:20.

Undisputed /Misleading. Mr. Bralley did not attempt to record, or record, any portion of the

executive session. Ex. 13, Lodging of Exhibits, Disk A at APS0006; Ex. 9 Bralley Dep., pp.

213-215.

30. Plaintiff and Mr. Bralley had driven to the meeting together and were quite clearly

operating as a team. Ex. A, at 53:22-54:12,100:19-102:1; Ex. H, at 205:1-5; Ex. J, at 102,146-48.

Disputed/Immaterial. There is no evidence that Plaintiff and Mr. Bralley were acting as a team.

Indeed, Defendant Esquivel admitted in his deposition that he did not associate Plaintiff and Mr.

Bralley as being connected in anyway. Ex. 3, Esquivel Dep., 78:22 – 79:16. While Plaintiff

admits that Mr. Bralley is his friend, and they have a shared interest in observing, monitoring and

speaking about the activities of the APS Board, this did not make it reasonable for Defendant

Robbins to eject Plaintiff from the Audit Committee meeting because he thought that Mr. Bralley

had not acted quickly enough in turning off his equipment as he was leaving the room, before the

executive session began. See Ex.12, MacQuigg Affidavit of 11/7/14.

31. However, Plaintiff further disrupted the meeting by arguing with Mr. Robbins and

acting as if he and Mr. Bralley were not together. Ex. J, at 154:10-22,171:5-172:6.

Disputed/Immaterial. It is immaterial whether Plaintiff disrupted the meeting by arguing with


24

Defendant Robbins because Defendant Robbins had already made the decision to eject Plaintiff

from the meeting. Furthermore, the exchange between Plaintiff and Defendant Robbins was not

disruptive. The entire exchange was recorded and is in evidence. See Ex. 13, Lodging of

Exhibits, Disk A, at APS0006. The video shows that Plaintiff merely denied Defendant Robbins’

assertions that he had improperly recorded the meeting. Id. It was reasonable for Plaintiff to

explain to Defendant Robbins that he had done nothing wrong. After responding, Plaintiff left

the public meeting as ordered. Id.

32. On his way out the door, Plaintiff intentionally walked into APS Chief Operating

Officer Brad Winter's personal space, and within inches of his face, whispered something

unintelligible. Ex. K, Winter Affidavit. Disputed/Immaterial. Plaintiff denies that he

intentionally walked into Mr. Winter’s personal space and whispered something to him. Ex. 11,

MacQuigg Affidavit of 09/23/13. The allegation is immaterial because Defendant Robbins had

already ejected Plaintiff from the meeting when this alleged interaction occurred. Finally, there is

no evidence that Defendants used or otherwise relied on this alleged incident as a basis for

issuing the Banning Order, which is the implication Defendants are hoping to draw. It is merely

another self-serving attempt to put Plaintiff in a bad light in an effort to somehow justify

Defendants’ conduct.

33. Defendant Esquivel contacted APS counsel on August 26, 2010 regarding the

possibility of restricting Plaintiff's attendance at meetings pending a discussion about his

disruptive behaviors. See Exhibit L, Melendres Dep., 35: 11-18; 60:20-61: 10.

Undisputed/Incomplete. This Court has already found that what Defendants have claimed was

“disruptive behavior” was protected speech. See Doc. 114.


25

34. In providing advice regarding the issuance of the September 1, 2010 letter,

counsel for APS, Arthur Melendres, and Defendant Esquivel discussed some of the events giving

rise to Defendant Esquivel's desire to take action; however, Mr. Melendres had observed the

majority of the disruptive action himself, and was apprised of the situation. Exhibit L at 35: 11-

18; 60:20-61:10. Disputed/Misleading/Incomplete. Plaintiff disputes that Mr. Melendres ever

witnessed any disruptive behavior by Plaintiff. The video evidence in this case contradicts Mr.

Melendres’ vague and nonspecific recollection of Plaintiff’s behavior at Board meetings. See

Ex.13, Lodging of Exhibits, DVD Disk A, at APS 001, APS 002, APS 005. But even if Plaintiff

acted as Mr. Melendres describes, this was not a basis to ban Mr. MacQuigg from future

meetings. Furthermore, Mr. Melendres testified in his deposition that he believed it was a “better

option” that Esquivel discuss matters with Mr. MacQuigg rather than ban him from meetings.

Ex. 10, Melendres Dep., at 83.

35. Defendant Esquivel drafted the September 1, 2010 letter and referred to Mr.

Melendres for review; Mr. Melendres' office performed legal research, reviewed the letter, and

approved it. Exhibit L at 55-61; 79:4-82:22; 85:25-86:21. Partially

Disputed/Misleading/Immaterial. Plaintiff admits that Mr. Melendres reviewed the September

1, 2010 letter. What Defendants’ statement of fact omits, leaving an incorrect impression, are

these facts: It was Defendant Esquivel’s idea to write the letter. See Ex. 3, Esquivel Dep., p. 246;

He asked Mr. Melendres to research the issue and Mr. Melendres researched whether it would be

possible to enjoin Mr. MacQuigg from attending meetings and concluded it would not be

possible; Defendant Esquivel told Mr. Melendres that an injunction was not what he had in

mind; rather, he wanted to exclude him until he stopped being “disruptive” (presumably ceasing

to address Board members individually and ceasing to criticize individual Board members or


26

staff members). Defendant Esquivel drafted the letter, Mr. Melendres’ office made a few edits

and Mr. Melendres approved sending it. Ex. 10, Melendres Dep., pp. 96, 106, 110-111.

Defendant Esquivel has never claimed to have been ignorant of the law. In fact, he is well-

known for his expertise in First Amendment issues. Ex. 3, Esquivel Dep., pp. 46-48. Mr.

Melendres’ testimony was that Defendant Esquivel asked him to confirm that the Board had “the

inherent authority to prevent disruptive behavior.” Ex. 10, Melendres Dep., p. 59-60. What

Defendant Esquivel told Mr. Melendres (falsely, as is established by this Court’s opinion

granting the preliminary injunction) was that “Mr. MacQuigg’s conduct had reached the point

that it was so disruptive of the ability of the board to conduct its business that a step had to be

taken by the board president to stop the disruption…” Id. at p. 59: 13-18. The parties’ email

exchanges show that Defendant Esquivel asked Mr. Melendres to research whether the Board

could get an injunction against Plaintiff to bar him from meetings and the response, from outside

legal counsel, was to draw Defendant Equivel’s attention to a New Mexico Supreme Court case

that made it clear that a court would not enjoin a citizen from attending public meetings. See Ex.

20, (Email re NM Supreme Court case re injunction). It was only after receiving this advice that

Defendant Esquivel drafted the September 1 letter and sent it to Mr. Melendres. So the evidence

shows that Defendant Esquivel received the correct advice from Mr. Melendres’ firm, i.e., that a

court would not permit the exclusion of a citizen from public meetings. Rather, any injunction

had to be tailored to the specific disruptive behavior of the citizen at the earlier meetings. One

can only wonder what a court would have done if the Board had asked for an injunction to

prevent Plaintiff from criticizing individual board members during the public forum part of the

meeting. Whatever may be the parties’ disputes about Mr. Melendres’s legal advice, one thing is

clear: the advice and the letter were predicated on the assumption that Plaintiff had been and


27

continued to be “disruptive” and this Court has held that that was not the case. Given the

conflict between the legal advice and the facts, there is no basis for an “advice of counsel”

defense. See argument and authorities at Point C.2 of Plaintiff’s memorandum in response.

While Mr. Melendres apparently acquiesced in Defendant Esquivel sending the letter,

Mr. Melendres appears to have disagreed with Defendant Esquivel’s decision to ban Mr.

MacQuigg from meetings for any period of time. As Mr. Melendres explained at his deposition,

“It was [Defendant] Esquivel’s idea that he send a letter, and he asked Mr. MacQuigg to meet

with him. And after I thought about a time period ban, and thought about this, I thought that this

was clearly a better option. ‘This,’ meaning the letter saying, Please meet with me.” Q. The one

that is not a ban – the September 1st 1etter that you describe as not a ban? A. But as an

invitation. That’s what I’m describing as a better option.” Ex. 10, Melendres Dep., 83:6-17.

When Defendant Esquivel finally sent Mr. Melendres his proposed letter to MacQuigg,

he commented to Mr. Melendres: “Art, this might be a stretch.” Id., line 24. Defendant

Esquivel’s draft was circulated to legal counsel on September 1 at 1:08 p.m. Ex. 21, (9/1/10

email circulating draft of banning letter to law firm). Mr. Melendres’ partner suggested they

remove the word “disrespectful” and insert the word “disturb” but concluded that it was “a good

approach.” Ex. 22, 9/1/10 McCormick email re “disturb”. This appears to have been the extent

of the “advice of counsel.”

The Court should decide for itself whether Plaintiff’s two-minute statements during

“public comment” can reasonably be said to have been “so disruptive of the ability of the board

to conduct its business” that something had to be done. The videotapes contradict Defendant

Esquivel’s assertion. See Ex.13, Lodging of Exhibits, DVD Disk A, at APS 001, APS 002, APS

005. Indeed, the Board has been able to identify no moments other than the incident during the


28

Audit Committee meeting (which did not involve Plaintiff other than his being ejected for no

reason), since the November 5, 2009 “warning” letter a year earlier, (Ex. 23) in which Plaintiff

had done anything disruptive, even in the Board’s expansive view of that term.

Finally, there is no evidence in the record, nor has Defendant Esquivel ever contended,

that Mr. Melendres’ approval of the letter overcame Defendant Esquivel’s knowledge of the law,

or the law he is charged with knowing, during an “extraordinary circumstance,” which is what

would be required to establish an “advice of counsel” defense to a civil rights violation.

36. On September 1, 2010, Mr. Esquivel and Mr. Tellez signed the letter informing

Plaintiff that he was not welcome to attend APS Board Meetings until Plaintiff met with Mr.

Esquivel and Mr. Tellez to discuss his behavior and to provide assurances that he would not

continue to disrupt Board meetings and threaten APS officials. (Ex. D, at 209-10,224-27,233,

237-38 (attached); Ex. E, at 75-77, 124, 138; Ex. M, September 1, 2010 Letter).

Disputed/Misleading. The Banning Order speaks for itself in that it indefinitely bans Plaintiff

from future meetings and conditions his “privilege” to attend on his willingness to abide by the

Board’s rules of decorum which he had violated by criticizing Board members and

administrators by name. Ex. 24 (Doc22-1, exhib.D – 09/01/10 Banning Letter); and Ex. 13,

Lodging of Exhibits, DVD Disk A, at APS 0005. See also this Court’s Opinion granting

Preliminary Injunction, Doc. 114, pp. 10-13, finding that MacQuigg’s conduct was not

disruptive.

37. Mr. Tellez signed the letter and agreed with it, but had no role in preparing the

letter. Ex. E, at 75:10-76:19, 86-87. Admitted/Immaterial. Plaintiff admits that Defendant

Tellez signed the Banning Order and agreed with it. It is immaterial, however, whether

Defendant Tellez participated in the drafting of the Banning Order.


29

38. Though Mr. Tellez signed the letter and thought it was a good idea, he also did

not think it was his place to tell the Board or his supervisors what they could or could not do.

Exhibit E, 91:4-19. Partially Disputed/Misleading/Immaterial. It is immaterial whether

Defendant Tellez did not think it was his “place to tell the Board or his supervisors what they

could or could not do.” When Defendant Tellez was asked whether he voluntarily signed the

Banning Order, he answered “yes.” Ex.4, Tellez Dep., 91:20-22. When asked whether Defendant

Tellez’s supervisors forced him sign the Banning Order, he answered, “no, they did not tell me to

sign the letter.” Id. at 91:23-92:1.

39. Mr. Brooks did not draft or sign the letter, and did not believe that it was his place

to approve a letter written by the Board Chairman and approved by legal counsel, but Mr. Brooks

approved of the sentiment. Ex. I, Brooks Dep. at 63-65. Disputed/Misleading. While it is

correct to assert that Defendant Brooks’ signature was not on the letter, the factual record is clear

that Defendant Brooks participated in the decision to ban Plaintiff and send the Banning Order,

approved the Order and was more than sufficiently involved in the process to have “personally

participated” within the meaning of controlling law. See Ex. 4, Tellez Dep., 83:25-84:3, 84:24-

85:9, 87:21-88:7; Ex. 2, Brooks Dep., 62:8-14, 63:17-24, 64:5-65:8, 65:14-19, 66:1-10, 66:18-

25, 67:20-68-19, 69:11-19, 75:19-25.

40. Mr. Esquivel and Mr. Melendres have testified that the September 1, 2010 letter

was not motivated by the content of Plaintiff's speech, but rather was intended to prompt a

meeting with Plaintiff to assure that he did not continue his disruptive behavior. Ex. D at 224:22-

225: 13. Admitted/Disputed. Plaintiff admits that Defendants Esquivel and Melendres testified

as indicated. However, Plaintiff disputes the truth of the assertion because it is a self-serving

statement that is contrary to the evidence. There is ample evidence in the record for a jury to


30

find that Defendants issued the Banning Order because of Plaintiff’s speech. Indeed, the Court

relied on this evidence in its Opinion granting Plaintiff’s Motion for Preliminary Injunction.

[Doc. 114, p. 1]. The events described in the Banning Order—the ejections from the November

4, 2009 regular meeting and the August 25, 2010 Audit Committee meeting—show that it is

more likely than not that Defendants issued the Banning Order because they disagreed with and

were angered by Plaintiff’s criticisms of them. As this Court found, what Defendant Esquivel

and the other Defendants characterize as disruptiveness was protected speech. Doc. 114, pp. 5-

13. Furthermore, all of the evidence in response to Defendants’ Undisputed Fact No. 14

establishes that Plaintiff was not disruptive at any time.

41. Mr. Esquivel and Mr. Melendres did not view the letter as a "ban." Ex. D, at

225:19-226:11,237:6-13. Disputed. The Banning Order speaks for itself in that it indefinitely

bans Plaintiff from future meetings and conditions his “privilege” to attend on his willingness to

abide by the Board’s (unlawful) rules of decorum, which he apparently had violated by

criticizing Board members and administrators by name. Ex. 22 [Doc. 22-1, Exhib. D at Disk A,

APS 0005] and Ex. 13, lodging of exhibits. Defendant Esquivel, at the time the letter was under

consideration described it as a “ban.” Ex. 27.

42. After issuance of the September 1, 2010 letter, APS officials first contacted

Plaintiff to try to set up the meeting on November 9, 2010. Ex. N, Emails Regarding Meeting.

Partially Disputed/Irrelevant. Plaintiff does not dispute that the parties engaged in some back

and forth discussion to schedule a meeting. Plaintiff, however, disputes the assertion that he did

not take affirmative steps to arrange a meeting or that, whatever the facts are, this somehow

relieves the Defendants of the obligation to permit Mr. MacQuigg to attend and speak at Board

meetings, nor is this even relevant to the claims before the Court. Furthermore, Defendants’


31

characterization of the facts is incorrect. Mr. MacQuigg initially made arrangements to meet, but

after APS could not find a suitable time and after APS stopped communicating with him, he

consulted and retained legal counsel. Ex. 1, MacQuigg Dep., pp. 143-148; Ex. 11, MacQuigg

Aff. of 9.25.13. Mr. MacQuigg’s legal counsel engaged in several communications with APS’s

legal counsel, Mr. Art Melendres, including sending the final written communication between

the parties before the litigation commenced, to which Mr. Melendres did not and has never

responded. Ex. 28A-D. Mr. MacQuigg’s counsel requested evidence that Mr. MacQuigg had

disrupted meetings and acted in a threatening manner, and requested the legal basis of the ban.

Id. After APS failed to respond, Plaintiff filed this lawsuit.

43. APS officials then set a meeting with Plaintiff on November 16, 2010; however,

Plaintiff cancelled the meeting. Ex. A, at 143-44; Ex. D, at 40:19-41:5; Ex. E, at 141:15-142:1.

Disputed/Irrelevant. See Plaintiff’s response to Undisputed Fact # 42.

44. APS officials and APS' s attorney, Mr. Melendres, made additional attempts to set

the meeting, but were unable to secure a date with Plaintiff. Ex. E, at 141: 15-142: 1; Ex. N.

Disputed. See Plaintiff’s response to Undisputed Fact # 42.

45. For his part, Plaintiff has testified that he felt no obligation, and made no

affirmative effort, to set up or attend a meeting with Mr. Esquivel and Mr. Tellez. Ex. A, at 145-

48. Disputed/Irrelevant/Misleading. See Plaintiff’s response to Undisputed Fact # 42.

Defendant Tellez also testified that it was his responsibility to arrange the meeting. Ex. 4, Tellez

Dep., 146:14-16. Plaintiff testified that it was clearly “in [Defendants’] court” to arrange the

meeting. MacQuigg Dep., 144:17 - 147:9.

46. Plaintiff has testified that he has no intention of changing his behavior and that

part of why he never pursued the meeting with Mr. Esquivel and Chief Tellez was that it would


32

require him "to agree that I had done something wrong, which I have not, and that I wouldn't do

it again, which I had every intention of." Ex. A at 146:15-147:9.

Undisputed/Immaterial/Misleading. Plaintiff admits that he testified that he believed he has

done nothing wrong, and that the ban was unwarranted. The alleged fact is immaterial to

Defendants’ Motion for Summary Judgment because it does not establish that Plaintiff has any

intention of disrupting future meetings. Moreover, the alleged “fact” is misleading because, by

including it, Defendants apparently wish to imply that Defendant will cause future disruptions if

his right to attend and speak at Board meetings is restored. As previously established, there is no

evidence that Plaintiff ever disrupted Board meetings or that he will cause future disruptions. See

Doc. 114, Order on Prelim. Inj.

47. On two occasions after issuance of the September 1, 2010 letter, APS police

officers caught Plaintiff trying to sneak through a side door at 6400 Uptown Blvd. Ex. E at

206:9-14. Disputed. Mr. MacQuigg testified that he never attempted to sneak into a side door at

APS Headquarters to evade APS police. See Ex. 11, MacQuigg Aff. of 9.25.13. Moreover, the

Banning Order does not prohibit Mr. MacQuigg from entering any APS property, including at

APS Headquarters, even though the Banning Order has been wrongly interpreted in the past to

bar Mr. MacQuigg from all events at APS Headquarters, not just APS Board meetings. Ex. 4,

Tellez Dep., pp. 70-74, 92. The events in question did not take place. Ex. 11, MacQuigg Aff. of

9.25.13.

48. The September 1, 2010 letter did not prevent, and has not prevented, Plaintiff

from attending APS meetings held at locations other than 6400 Uptown Blvd. Ex. A, at 17-19;

Ex. E, at 68:15-18, 92:7-23. Partially disputed/Immaterial/Misleading. Plaintiff admits that

the Banning Order only prevented him from attending the regular meetings of the APS Board.


33

Plaintiff disputes any assertion that the Banning Order permitted him to attend the Board’s public

meetings at locations other than at 6400 Uptown Blvd. The Banning Order speaks for itself. Ex.

24. It applies to all of the Board’s public meetings regardless of where the meetings are held. Id.

It is true that Plaintiff was able to attend APS press conferences and community meetings while

the Banning Order was in effect, but these meetings were not public meetings of the APS Board.

Exs. 16, 17. Indeed, this is further proof of the unreasonable nature of the ban. Why may

Defendants’ preclude Plaintiff attending and participating in the public meetings of the Board,

but permit him to attend other APS meetings like press conferences and community meetings?

The fact that the Banning Order was limited in this way tends to establish that Defendants’

motives were not that Plaintiff was a threat or would be disruptive. Rather, they excluded him

from the meetings at which he was allowed to speak.

III. ARGUMENT A. Applicable Legal Standards.

In characterizing the legal standards that are applicable to a motion for summary

judgment, Defendants’ statements are correct as far as they go, but they are incomplete as to the

issue of qualified immunity. The Defendants state that “once a defendant raises a qualified

immunity defense, the plaintiff then has the burden ‘to show both that the defendant’s alleged

conduct violated the law and that the law was clearly established when the alleged violations

occurred.” (Quoting Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 646 (10th

Cir 1988). While this is a correct statement, the Defendants omit the cautioning and limiting

language of decisional law that even though a plaintiff must establish these two prongs, a court

draws all reasonable inferences from the evidence in plaintiff’s favor and resolves all factual

disputes in the plaintiff’s favor, including the issue of whether the law was clearly established at


34

the time of the events. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (“[U]nder either prong,

courts may not resolve genuine disputes of fact in favor of the party seeking summary

judgment”). See also, Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009) (“In

determining whether the plaintiff has met his burden of establishing a clearly established

constitutional violation, ‘we will construe the facts in the light most favorable to the plaintiff as

the nonmoving party.’”).

Even if the standard were less favorable for Plaintiff, the Defendants would have no basis

to seek summary judgment on any part of Plaintiff’s claims, including on the basis of qualified

immunity, except to the extent that a particular Defendant may not have played a sufficient role

in one or another of the constitutional violations. As to the latter point, the parties have reached

agreement on a stipulation regarding which Defendants personally participated in which of the

events at issue, with the exception that they disagree regarding Defendant Brooks’ role in the

Banning Order. See Point B, below.

B. As to the one Issue Regarding Defendant Brooks’ Participation in the “Banning Order” and as to the issues related to Qualified Immunity The Court Should Deny Defendants’ Motion.

1. The parties’ stipulation resolves all but one of the issues raised by the individual Defendants regarding their “personal participation” in each of the events giving rise to Plaintiff’s claims.

The parties have agreed that, for purposes of summary judgment, the participants in the

events giving rise to Plaintiff’s claims, as to each event, were the following and Plaintiff does

not seek recovery against the other Defendants except as set forth below:

- As to the expulsion of Plaintiff from the November 4, 2009 Board meeting:

Defendant Esquivel.


35

- As to the events involving the committee meeting that included the gubernatorial

debate on August 19, 2010: Defendants Armenta and Brooks.

- As to the ejection of Plaintiff from the August 25, 2010 Audit Committee meeting:

Defendant Robbins.

- As to the September 1, 2010 letter to Plaintiff regarding future attendance at Board

meetings: Defendants Esquivel, Tellez, and Brooks.10

Although Defendants acknowledge that Plaintiff is asserting claims arising from the Banning

Order against Defendant Brooks, Brooks maintains that he did not personally participate in the

issuance of the Banning Order and is entitled to summary judgment on that basis and on the basis

of “advice of counsel.” Doc. 135, Def. Br., pp. 11-14.

Accordingly, the parties’ stipulation resolves all of the claims of lack of personal

participation except for Defendant Brooks’s involvement in the issuance of the Banning Order.

Nor does it resolve any of the Defendants’ qualified immunity claims, including Defendant

Esquivel’s, Tellez’s, and Brooks’ “advice of counsel” defense.

2. There is more than enough evidence of Defendant Brooks’ participation in the Banning Order of September 1, 2010 to establish civil rights liability.

Defendants argue that “the law is clear in the Tenth Circuit that “individual liability under

Sec. 1983 must be based on personal involvement in the alleged constitutional violation.” Doc.

135, Def. Br., p. 12, emphasis added, quoting Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.

1997). Plaintiff fully agrees with this characterization of the controlling law. What Plaintiff

10 The issue of qualified immunity does not affect whether Plaintiff is entitled to declaratory and injunctive relief against the APS Board as it relates to the issuance and ongoing enforcement of the Banning Order. Nor does the issue of qualified immunity affect Plaintiff’s claims that the Board’s “personal attacks” and “personnel issues” policies are unconstitutional both facially and as applied. “Qualified immunity, however, does not apply to claims for equitable relief.” Kikumura v. Hurley, 242 F.3d 950, 962 (10th Cir. 2001); And see, Cannon v. City & County of Denver, 998 F.2d 867, 876 (10th Cir.1993).


36

does not grasp, however, is the basis for Defendant Brooks’ factual assertion that he was not

involved in the issuance of the banning letter.

Defendant Brooks’s deposition testimony and the Defendants’ interrogatory answers

attest to his involvement. At his deposition, Defendant Brooks testified as follows: Q. “Did you

play any role in the approval or issuance of the September 1, 2010 letter?” A. “Not in the

approval. I think during the discussions about what we should do, I was certainly part of those

discussions.” [Ex. 2, p. 62]….“I think better stated would be that I approved of the letter. I really

don’t have any authority to approve a letter written by the board president, or legal counsel.” [Id.,

p. 63] Q. …I’m directing you to the third paragraph under the answer to interrogatory number

one...And for the record…it says ‘Winston Brooks reviewed a draft of the September 1st, 2010

letter, and approved the letter subject to the approval of outside counsel.” [Id., pp. 63-64]. A. “I

was given a copy [of the letter] to look at, and to see if there was anything in there that was

bothersome to me, and there was not.” [Id., p. 65]. “I reviewed a draft. I actually had the

opportunity.” [Id., p. 66]. “I was involved in some of the discussions [of the letter]” [Id., p. 66].

“I’m sure I was consulted about whether or not it was a good idea or not.” [Id., p. 68]. In

response to a question about how many conversations he had had regarding the issuance of the

letter, Brooks testified, “My guess would be five, six.” [p. 68]. When asked whether he told

defendant Tellez, his subordinate, to sign the letter, Brooks’ response was: “I don’t recall that I

did direct him, but I certainly would have encouraged him.” [p. 76]. In email correspondence

with Defendant Esquivel and Mr. Melendres, five days before the issuance of the Banning Order,

Defendant Brooks gave his view regarding the letter: “I actually think you are being too soft, i.e.,

giving him the opportunity to talk to you, me, etc. We have all done that before without any

apparent changes in behavior. I think you would have unanimous support to ban him for the


37

entire 2010-2011 school year from all APS sites.” [Ex. 27, Email Brooks to Esquivel, cc

Melendres, of 8/26, 2010].

Thus Defendant Brooks’s own deposition testimony and contemporaneous

communication establishes his significant involvement in the Banning Order. Like other

elements of a civil rights claim, the issue of personal involvement is inappropriate for summary

judgment when there is evidence in the record sufficient to allow the fact-finder to conclude that

it existed. Dodds v. Richardson, 614 F.3d 1185, 1204 (10th Cir. 2010).

C. No Defendant is Entitled to Qualified Immunity.

1. The relevant civil rights law was clearly established when the Defendants violated Plaintiff’s first and fourteenth amendment rights.

In their memorandum, Defendants point out, correctly, that once a defendant raises a

defense of qualified immunity, the plaintiff must show that a defendant’s conduct violated the

law and that the law was clearly established at the time of the alleged violation. Doc. 135, Def.

Br., p. 10. Defendants do not concede, as they should, that their conduct as alleged violated the

law, nor do they concede, for purposes of summary judgment, that the applicable law was clearly

established. Once again, while the Defendants are of course free to preserve their claims and

defenses should a trial on the merits be required or for appeal, they are not in a position, at this

stage, to suggest that they are entitled to summary judgment on the basis of qualified immunity.

As to the issues of whether the Defendants violated Plaintiff’s constitutional rights, this

Court has already held that the Defendants’ conduct did so. See Doc. 114, Order Granting

Prelim. Inj., pp. 10-14. The second issue is whether that law was “clearly established” when

Defendant Esquivel ejected Plaintiff in November, 2009 (chronologically the first event alleged

in the complaint).


38

It is no surprise that the extent of Defendants’ argument is to assert that the Plaintiff must

establish that the law was clearly established. Defendants do not cite any authorities suggesting

that the law was not clearly established; leaving it to Plaintiff to show the obvious.

The Supreme Court has long identified the suppression of speech by public officials to

unlawful:

It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys (citations omitted)…When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. (Citations omitted.)

Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 828-830 (1995)

(forbidding viewpoint discrimination regardless of nature of forum). See also, Hansen v.

Westerville City School Dist. Bd. of Educ., 43 F.3d, 1472, 1480 (C.A. 6 Ohio), 1994 WL 622153,

8 (6th Cir. 1994) (Unpublished decision that Plaintiff cites to show law was clearly established

long before the events here).

It was well established in 1988, when the cause of action arose, that members of the public had a right to attend a public school board meeting. See Madison Joint Sch. Dist., 429 U.S. at 176; Mosley, 408 U.S. at 96. A reasonable police officer in the position of Officer Tiburzio would have known that he could not exclude members of the public from a school board meeting solely on the basis of their viewpoints.

Id. Furthermore, to the extent that the Defendants continue to argue that they could lawfully

prevent the Plaintiff from discussing “personnel issues” at their meetings, the Tenth Circuit long

ago rejected such a proposition. Mesa v. White, 197 F.3d 1041, 1046 (10th Cir. 1999) (public

body lacks any “significant interest in restricting the public's ability to present its views on

personnel or litigation matters at a public meeting. The performance of public employees and the

handling of employment-related litigation can be important matters of public concern.”). For


39

that matter, this Court has already rejected Defendants’ contention that plaintiff’s comments

related to “personnel matters”. Doc. 114, Order Granting Prelim. Inj.

A year before the events in this case, a Michigan federal court, relying on decades-old

Supreme Court cases, explicitly addressed whether the law that is at issue in this case was

“clearly established:”

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).

Timmon v. Wood, 633 F.Supp.2d 453, 462 (W.D.Mich.,2008), This language echoes the long-

standing decisional law that, even in a non-public forum, and regardless of the standard of

scrutiny, the government cannot discriminate on the basis of viewpoint. Cornelius v. NAACP

Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985) (“Even in a nonpublic forum,

restrictions must be viewpoint neutral”). Eight years before the events in this case, the United

States Supreme Court summarized the law relevant to the present qualified immunity issue:

When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech. The State may be justified “in reserving [its forum] for certain groups or for the discussion of certain topics.” (Citations omitted.) The State's power to restrict speech, however, is not without limits. The restriction must not discriminate against speech on the basis of viewpoint (citation omitted), and the restriction must be “reasonable in light of the purpose served by the forum,” (emphasis added)

Good News Club v. Milford Central School, 533 U.S. 98, 106-107 (2001), citations omitted

(Emphasis added). Courts also had addressed the prior existence of law related to banning

citizens from public meetings because of earlier disruptive conduct, relying on earlier decisional

law:


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A prior restraint of expression “exists when the government can deny access to a forum before the expression occurs.” Bourgeois v. Peters, 387 F.3d 1303, 1319 (11th Cir.2004). Such a “prior restraint of expression comes before [the] court with ‘a heavy presumption against its constitutional validity.” ’ Universal Amusement Co. v. Vance, 587 F.2d 159, 165 (5th Cir.1978) (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); New York Times Co. v. United States, 403 U.S. 713, 714 (1971)). Moreover, the government cannot prohibit future expressive activity as a result of past unlawful conduct. Polaris Amphitheater Concerts, Inc. v. City of Westerville, 267 F.3d 503, 507 (6th Cir.2001) (“where a law sets out primarily to arrest the future speech of a defendant as a result of his past conduct, it operates like a censor, and as such violates First Amendment protections against prior restraint of speech”).

Brown v. City of Jacksonville, Fla., 2006 WL 385085, 4 (M.D.Fla.) (Plaintiff has included the

internal citations to show the dates of the controlling decisions). In Norse v. City of Santa Cruz,

629 F.3d 966, C.A. 9 (Cal.) 2010, the Ninth Circuit Court rejected the same litany of arguments

that the Defendants have posited here, in a case with striking similarity, as the Court described:

Norse could no doubt have presented lots more evidence that he never disrupted the Santa Cruz council meeting, but what would have been the point? The video speaks for itself: Norse raises his hand in a brief, silent protest of the mayor's treatment of another speaker. The mayor ignores Norse's fleeting gesture until Councilman Fitzmaurice throws a hissy fit. “Listeners' reaction to speech is not a content-neutral basis for regulation.... Speech cannot be ... punished or banned[ ] simply because it might offend a hostile” member of the Santa Cruz City Council. Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 134–35 (1992). The council members should have known that the government may never suppress viewpoints it doesn't like. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Though defendants point to Norse's reaction to Councilman Fitzmaurice as the “disruption” that warranted carting him off to jail, Norse's calm assertion of his constitutional rights was not the least bit disruptive. The First Amendment would be meaningless if Councilman Fitzmaurice's petty pique justified Norse's arrest and removal.

Id. at 982. A Connecticut court stated the foregoing particularly succinctly:

[T]he right to attend a public meeting, see, e.g., Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 96 (1972), [was] well-established in 1994, when the plaintiff's cause of action arose. See Harlow, 457 U.S. at 818–19 (“If the law was clearly established, the immunity defense ordinarily should fail, since a


41

reasonably competent public official should know the law governing his conduct.”)

Burton v. Stergue, 1998 WL 893151, 7 (D.Conn.,1998) (unreported).

In the case at bar, this Court has already determined that the Defendants’ conduct in

barring the Plaintiff was based on the content of Plaintiff’s speech. There is no question that the

law was “clearly established” in 2009 that a public body, during a public comment period,

cannot silence speakers on the basis of viewpoint and may not ban them from future public

meetings, even if they had been disruptive in the past.

Here, the videos show the same thing they did in Norse: Plaintiff’s calm assertion of his

right to speak on matters of importance regarding APS simply angered the Defendants, who

continue to implacably insist that he was being “disruptive.” Ex. 13, Lodging of Exhibits, Disk

A at APS001, APS002, APS005.

2. Defendants Esquivel, Tellez and Brooks are not entitled to rely on “advice of counsel” to establish qualified immunity.

Defendants’ discussion of the case law related to “advice of counsel” in the context of the

defense of qualified immunity is also lacking. Defendants assert that because the Board’s

attorney reviewed the Banning Order before Defendants Esquivel and Tellez signed and sent it,

it is an “extraordinary circumstance” entitling the relevant Defendants to qualified immunity

notwithstanding the clearly established law, relying on the Tenth Circuit’s holding in Gomes v.

Wood, 451 F.3d 1122, 1134 (10th Cir. 2006), Doc. 135, Def. Br. p. 14. Gomes, however, does

not stand for any such blanket proposition. It merely acknowledges that advice of counsel can in

rare circumstances supports a claim of qualified immunity and it touches on the circumstances

for its applicability in language that is apt here, but in the most pertinent part omitted from

Defendant’s brief:


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Finally, if the law was clearly established, we proceed to the third part of the inquiry. We ask whether, in spite of the fact that the law was clearly established, “extraordinary circumstances”—such as reliance on the advice of counsel or on a statute—“so prevented [the official] from knowing that [her] actions were unconstitutional that [she] should not be imputed with knowledge of a clearly established right.” “[W]here the right is clearly established, a defendant should only rarely be able to succeed with a qualified immunity defense.” Id. (internal quotation marks omitted).

Id. at 1136. (Citations omitted.) (Emphasis added, brackets in original.) The Tenth Circuit

elaborated:

“Whether reliance upon legal advice ‘bars our imputation to [the defendant] of constructive knowledge concerning the laws allegedly violated by his conduct,’ depends upon the circumstances of each case. Relevant factors include how unequivocal, and specifically tailored to the particular facts giving rise to the controversy the advice was, whether complete information had been provided to the advising attorney(s), the prominence and competence of the attorney(s), and how soon after the advice was received the disputed action was taken.” (citations omitted)

See V-1 Oil Co. at 1488-89. “[T]he question is whether the consultation “so ‘prevented’ [the

official] from knowing that his actions were unconstitutional that he should not be imputed with

knowledge of a clearly established right.” Roska v. Peterson, 328 F.3d 1230, 1251, C.A. 10

(Utah 2013).

Merely consulting with an organization’s attorney regarding a proposed course of action

is not enough to establish the defense. “[G]iven the Supreme Court's admonishment that ‘a

reasonably competent public official should know the law governing his conduct,’ Mr. Reed

must point to something in his consultation with the city attorney that prevented him from

knowing the law. This he has not done. The district court therefore erred by granting Mr. Reed

immunity on the basis of his consultation with the city attorney.” Lawrence v. Reed, 406 F.3d

1224, 1230 -1231 (10th Cir. 2005). (Citations omitted, emphasis added.) Here, as noted below,


43

the only person who consulted with counsel was Defendant Esquivel, himself an expert in first

amendment law and hardly someone who could have been prevented from knowing the law.

In this case, the following factors prevent the Defendants from relying on an “advice of

counsel” defense, given the Tenth Circuit’s decisional law:

1. The “advice” (if Mr. Melendres’s review of the Banning Order can be considered

“advice”11), was not tailored to the facts giving rise to the controversy. The attorney,

Mr. Melendres, only reviewed a letter drafted by Esquivel. Ex. 10, Melendres Dep.,

pp. 59-60. The predicate for the letter, as it was finally sent, was that Plaintiff had

“disrupted” earlier meetings and would continue to disrupt them in future if he was

allowed to continue to attend. Ex. 24, Banning Order. This Court has already found,

based on the evidence (particularly including the videos) that Plaintiff was not

disruptive. Accordingly, the Banning Order (to the extent that it can be said to reflect

the opinion of counsel) is based on a predicate that is contrary to fact. Indeed, one

can only guess what Mr. Melendres’s “advice” would have been if the Defendants

had asked the right question: “Can we ban Plaintiff because his viewpoint on

Character Counts! and the way he asks questions ticks us off?”

2. To the extent that Mr. Melendres provided any actual legal advice, as such, to

Defendants Esquivel, Tellez and Brooks, it was to inform them that, under New

Mexico decisional law, Los Lunas Consolidated Sch. Dist Bd. Of Ed. V. Zbur, 89

11 On behalf of Defendant Tellez, Defendants make the extraordinary argument, at p. 14 of their brief, that “Extraordinary circumstances exist to grant qualified immunity to Mr. Tellez because the September 1, 2010 letter was sent only after being reviewed and approved by APS’s outside counsel, Mr. Melendres.” Defendants cite Gomes, supra, 451 F.3d at 1134 in support. But Gomes makes no mention of an attorney’s approval of a letter, and, in any event, there is no evidence in the record that Defendant Tellez relied on Mr. Melendres’s advice or that anything Mr. Melendres did or said “so prevented [Defendant Telles] from knowing that [his] actions were unconstitutional that [he] should not be imputed with knowledge of a clearly established right.” Id.


44

N.M. 454, 553 P.2d 1261 (1976), a court would not exclude Plaintiff from public

meetings for past transgressions. Ex. 20. Zbur involved a prior assault at a meeting.

Id.

3. When Defendant Esquivel first wrote to Defendant Brooks and to Mr. Melendres

about the matter, he actually described a situation that is at least closer to reality than

the Defendants’ present assertion that Plaintiff was “disruptive:” “[M]y inclination

is to write Ched a letter informing him that he can no longer attend meetings based on

his refusal to observe rules of decorum and to be respectful.” (Emphasis added.) Ex.

27. Significantly, the draft letter that Defendant Esquivel proposed and Defendant

Brooks had approved included the warning that the ban would continue unless

Plaintiff satisfied Defendants Esquivel and Tellez that he would not be

“disrespectful.” Ex. 21. Mr. Melendres’ law partner, who was asked to comment on

the draft, responded, inter alia, “I’m not sure we should say ‘disrespectful.’

Belligerent is OK, but barring someone for being ‘disrespectful’ just sounds more like

‘we’ll throw you out if you criticize us.’” Ex. 22. In other words, legal counsel’s

advice was predicated on “facts” that legal counsel tailored to meet the desired

outcome of sending Plaintiff a banning letter for “disruption.” Of course, this Court

has already determined that the videotapes and other evidence support none of this.

The fact remains that Plaintiff was banned because what he had said had angered the

Board.

4. There is no testimony, nor would it be credible to claim, that Mr. Melendres’s

“advice” to Defendant Esquivel went to anyone other than Defendant Esquivel, who

was the only Defendant who discussed the letter with Mr. Melendres, and the only


45

one who can reasonably claim to have relied on Mr. Melendres’s “advice,” such as it

was. Defendant Esquivel is a lawyer and an expert on the First Amendment. Ex. 3,

Esquivel Dep., pp. 46-49. Nowhere has Defendant Esquivel testified, nor would it be

credible if he did, that Mr. Melendres’s “advice” “so prevented [him] from knowing

that [his] actions were unconstitutional that [he] should not be imputed with

knowledge of a clearly established right” Gomes, supra, 451 F.3d 1135.

5. Other than the fact that they knew that Mr. Melendres had approved sending the

Banning Order, neither Defendants Tellez nor Brooks has testified that they knew

anything about the advice that Mr. Melendres supposedly provided, much less

testified that it prevented them from knowing that their actions were unconstitutional.

If Defendants Brooks and Tellez are contending that being told “Our lawyer has

approved this letter” is sufficient to create a defense to a violation of clearly

established civil rights law, then they will have to change the clearly established law

regarding advice of counsel. Id.

6. Defendant Esquivel, a lawyer and expert in First Amendment law, referred to the

letter’s expulsion of Plaintiff as “a stretch.” Ex. 10, Melendres Dep., 83: 24; Ex. 30.

7. Undoubtedly because of the New Mexico case law that rejected expelling someone

from public meetings for past misconduct, Mr. Melendres testified that he believed

inviting Plaintiff to discuss his behavior during public comment, rather than banning

him, was “a better option.” Ex. 10, Melendres Dep., 83: 2-17.

8. The Defendants now claim that the letter was not a “ban” as such, but rather an

invitation to meet and discuss matters. Doc. 135, Defs’ Undisputed Facts Nos. 40 and

41. This assertion is revisionism untethered to the reality that existed at the time. In


46

Defendant Esquivel’s email to “Winston [Brooks], Art [Melendres] and Brenda

[Yager],” Esquivel described his intent in sending the letter: “[M]y inclination is to

write Ched a letter informing him that he can no longer attend meetings based on his

refusal to observe rules of decorum and to be respectful….The gist of a letter to him

needs to be clear that he is being banned for his conduct and not his speech…” Ex.

27. (Emphasis added.) As the Court is aware, and as the videos of the Board

meetings show, Plaintiff’s conduct was not disruptive. It simply violated the Board’s

unlawful ban on criticisms directed at Board members and its rule against discussion

of “personnel issues” (which this Court explicitly found, in any event, that the

Plaintiff had not violated). Doc. 114, Order Granting Prelim. Inj., pp. 11-13; also Ex.

13, Lodging of Exhibits, Disk A, at APS001, APS002, APS005.

9. Defendant Esquivel has never testified that he was ignorant of the law.

10. Neither Defendants Esquivel Tellez or Brooks assert that it is an undisputed fact that

they relied on Mr. Melendres’s advice or that Mr. Melendres’s conduct or opinion

overcame their knowledge of the law.

Placing the foregoing evidence in the context of the law relating to advice of counsel as a

basis for qualified immunity, it shows that the elements necessary to invoke that defense are

absent.

3. Defendants Armenta and Brooks are not entitled to qualified immunity in connection with their exclusion of the Plaintiff from the District Relations Committee meeting at which a gubernatorial debate took place.

Defendants Armenta and Brooks apparently concede their personal involvement in the

exclusion of the Plaintiff from the District and Relations meeting at which the gubernatorial

debate occurred but argue that they are entitled to qualified immunity. Doc. 135, Def. Br., p. 19


47

(alleging that there is no allegation of proof that Defendants Tellez, Robbins or Chavez are

alleged to have participated or did participate in the exclusion of Plaintiff from the meeting) and

20 (alleging Defendants Brooks and Armenta to be entitled to qualified immunity because they

did not violate any clearly-established right in excluding the Plaintiff).

These two Defendants’ qualified immunity argument runs as follows: If Plaintiff is

claiming Defendant Armenta should have given him press credentials, then there is no First

Amendment violation because the press does not have a constitutional right to free access to

government property or to a debate. Second, if what Plaintiff wanted to do was speak, he had no

First Amendment right to speak at the debate because that was not the format. Third, even if

Plaintiff had a right to listen to the debate and/or report on it, he could have watched it on

television. Fourth, Defendants argue that Plaintiff had no constitutional right to attend the

debate. Fifth, Defendants argue that there is no evidence or likelihood that Defendants Brooks’

and Armenta’s exclusion of Plaintiff from the debate would chill his exercise of his First

Amendment rights. Doc. 135, Def. Br., 20-23. The lynchpin of the Defendants’ argument, in the

context of this case, however, is this statement, at p. 22: “[T]here is no evidence to prove that

Mr. Brooks or Ms. Armenta denied entry to Plaintiff because they disagreed with Plaintiff’s

point of view or sought to retaliate against Plaintiff for the content of his prior speech.” The

most the Defendants concede is to admit that Defendant Brooks denied Plaintiff entry because

attendance was limited and Plaintiff was not on the guest list “and yes, because based on

Plaintiff’s prior behavior, he thought Plaintiff might cause a disruption.” Doc. 135, Def. Br., 22.

Emphasis in original. As a threshold matter that ought to dispose of these arguments, this Court

has already held, as noted previously, that Defendants’ motives in excluding the Plaintiff from

meetings was because of his viewpoint, not because of his disruptiveness.


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Beyond the Court’s expressed views regarding Defendants’ motives, the responses to

Defendants Armenta’s and Brooks argument are these: First, it is clearly established law that a

citizen cannot be excluded from a public meeting, at all, much less on the basis of his

viewpoints. Second, there is plenty of evidence that Plaintiff was excluded from the meeting

because Defendants Brooks and Armenta disagreed with Plaintiff’s point of view and were

retaliating against him because of his prior speech.

Defendant Brooks’ testimony is revealing (references are to page and line of his

deposition, the excerpts of which are Ex. 2): After Defendant Tellez told Defendant Brooks that

Plaintiff had come to the debate with a ticket, Defendant Tellez asked Defendant Brooks whether

he should be allowed in.

Q. And what did you say?

A. I said absolutely not.

Q. [Why?]

A. He poses a threat. He is disruptive. He wasn’t invited. [144:16-21]

…

Q. And by “threat” do we agree that we are talking about a physical threat of some sort?

A. Not necessarily. It could be a physical threat.

Q. What other kind of threat would we be talking about?

A. Being disruptive. God only knows, pulling out the elephant mask again.

Q. So the other reason [for excluding MacQuigg] you described is that Mr. MacQuigg might be disruptive at the debate?

A. Correct. [145: 8-18].

Q. [H]ad Mr. MacQuigg done anything at Eldorado High School [the debate location] to be disruptive before you made the decision not to let him into the debate?

A. I don’t recall specifically… [145: 19-23]

….


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Q. When was that invitation list compiled?

A. It was probably being worked on up until the very last minute of the debate. [147: 4-7]

After testifying that he added people to the guest list at the last minute, Brooks was

asked why he couldn’t just put MacQuigg on the list? A: “It is just a decision I made.” [147: 24-

5]. When asked why he knew that Plaintiff’s name was not on the “guest list”, Defendant

Brooks’s response was: “Because I had had enough to do with [the list]. I was directing the list

enough to know that he wasn’t on the list.” [148: 15-20].

Q. Are you aware that Mr. MacQuigg obtained his ticket from Ms. Janice Arnold-Jones? A. I am.

Q. Who is she?

A. Right now she is a city councilor.

Q. At the time of the debate she was a state legislator?

A. Yes.

Q. If you had known that Ms. Arnold-Jones had given Mr. MacQuigg the ticket, would that have changed your decision?

A. No.

Q. Why is that?

A. Because I know Janice Arnold-Jones has a relationship with MacQuigg. They meet frequently and just because MacQuigg is a friend or acquaintance of Janis Arnold-Jones, doesn’t change my mind one bit about whether he should be admitted to the debate or not. [148: 10-25, 149: 1-20]

Defendant Armenta provided a telling explanation of why the fact that Plaintiff had

obtained a ticket from Arnold-Jones, a legislator and city councilor, made no difference in

whether Plaintiff would be admitted:

Ms. Armenta testified: “I understand they [MacQuigg and Arnold-Jones] are like-minded people who get together in social circles. I have no idea what they are.”


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Q. By “like minded” you mean Mr. MacQuigg and Janice Arnold-Jones are like-minded people; is that what you mean?

A. They seem to share some of the same political beliefs.

Q. By political beliefs, are you saying that in a partisan way?

A. Criticism of APS.

Ex. 5, Armenta Dep., 154: 11-21. (Emphasis added.)

On the basis of the foregoing testimony, there is ample evidence that Defendants Brooks

and Armenta excluded Plaintiff, even though he had a ticket, based on his prior speech.

1. Defendant Robbins is not entitled to qualified immunity. In their “undisputed material facts” at Nos. 26-32, Defendants allege that there is no

factual dispute that, during the Audit Committee meeting of August 25, 2010, the Plaintiff stood

in an area that was “off limits” to the public and resisted leaving, “thereby disrupting the

meeting.” Doc. 135, Defs’ Undisputed Fact No. 26. In addition, according to the Defendants, it

is undisputed that Plaintiff’s “associate” Mark Bralley, did not turn off his recording equipment

when instructed, prior to an “executive session” and that, after the end of the executive session,

Mr. Bralley admitted that he had not done so and, as a consequence, both he and Plaintiff were

ejected. Doc. 135, Def’s Undisputed Facts Nos. 26-29. Apparently in order to make Defendant

Robbins’ expulsion of Plaintiff for Mr. Bralley’s conduct explicable, Defendants also claim it to

be undisputed that Mr. Bralley and Plaintiff were “quite clearly operating as a team.” Id., at No.

30. It is also supposedly undisputed that Plaintiff argued that he and Mr. Bralley were not

“together” and that he should not be ejected and that, as he was leaving, Plaintiff entered Mr.

Winter’s “personal space” and muttered something unintelligible. Id. at 31-32. Plaintiff disputes

all of these assertions. See Plaintiff’s responses, supra at pp. 21-23 to the foregoing “undisputed

facts.”


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As Plaintiff sets out in his responses to these “uncontested facts,” they are hardly

uncontested. First, Defendants claim that it is undisputed that Plaintiff and Mr. Bralley

positioned themselves in an “off limits” area is belied by the facts. There was no “off limits”

area and when Plaintiff and Mr. Bralley were asked to move they did so, and were thanked for

doing so. Ex. 12, MacQuigg Aff. of 11.7.14. Defendants claim in their “undisputed fact No. 27”

that the innocuous interchange between Defendant Robbins and Mr. Bralley “disrupted the

meeting.” But the recording of this event, at Ex. 13, lodging of exhibits, Disk B, at MacQuigg

001743, track 02, demonstrates that Defendant Robbins called the meeting to order only after

Mr. Bralley and Plaintiff, without resisting or complaining, complied with Defendant Robbins’s

request to move to a different area of the room. Id. The recording also demonstrates with clarity

how the Defendants for purposes of this litigation are attempting to turn every interaction they

had with Plaintiff (even if it only involved someone else) into a “disruption.” See Ex. 18,

transcript of the “disruption” (during which Plaintiff says nothing at all, Mr. Bralley expresses

his desire to position himself where he is, but then promptly agrees to move, for which

Defendant Robbins thanks him and then calls the meeting to order). As to the issue of Mr.

Bralley’s recording, the record shows that he made no recording during executive session and

that he and Plaintiff, while they are friends and sometimes attend meetings together, are not any

sort of a “team”.12 Finally, Plaintiff has testified, and the recording shows, that Defendant

12 Q. Do you know Mr. Mark Bralley? A. Yes, I do. Q. How do you know Mr. Bralley? A. I know he -- I know of his prior experience with APD. He -- I believe he lives in my district. He is a friend of Ched's, or associate of Ched's, or something along those lines. He's showed up to several meetings. Q. Do you associate the two together, and by that I mean Mr. MacQuigg and Mr. Bralley? A. Nope. Q. Nope, you don't? A. No.


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Esquivel ordered him to get out of the doorway and Plaintiff said “I’m out.” Ex. 3, Esquivel

Dep., pp. 214, 216. The only disruption is of the Plaintiff’s civil right to attend public meetings.

The transcript of the expulsion of the Plaintiff is, in fact, a text-book case of abusive conduct by

a public official and a level of imperiousness that is shameful. It is fully set forth at Paragraph

77 of Plaintiff’s First Amended Complaint (Doc. 22).

Defendants attempt another point, based on the Court’s conclusion that the whole

“recording” episode seems to have been on a misunderstanding by Defendant Robbins. Doc.

114, Order Granting Prelim. Inj., p. 11. According to Defendants, if the Court is correct that

Defendant Robbins was simply mistaken about the recording, and was mistaken about Plaintiff’s

role in it, Defendant Robbins can hardly have had the “state of mind” to violate the Plaintiff’s

civil rights. Doc. 135, Def. Br., p. 25. But the problem for Defendant Robbins is not just that his

version of the facts are disputed;; there is also evidence in the record to establish that Defendant

Robbins shared the same animosity toward Plaintiff that Defendant Esquivel and the other Board

members did. Defendant Robbins testified that he felt Plaintiff had “an axe to grind” and “an

agenda” (Ex. 6, Robbins Dep., p. 31: 5-10; 51: 1-8) and that Plaintiff’s blog put Robbins “in a

very bad light” and was “misrepresenting” Defendant Robbins’s votes and actions (Id., 53:1-10).

Six weeks before the Audit Committee meeting, Defendant Robbins emailed Plaintiff to say, “I

believe you are not interested in the truth, just your version of it. I now join the other board

members in ceasing communications with you.” (Id., p. 55:17-20). Defendant Robbins agreed

Q. And why is that? A. I don't know them to have any type of business partnership. I think that they both write blogs and that's about it. Q. Do you consider Mr. Bralley to be sort of the picture-taking guy? A. No, I think he writes a blog as well. Ex. 3, Esquivel Dep., 78:22 – 79:16


53

that his decision to “stop communicating” with Plaintiff was in part because of the contents of

Plaintiff’s blog. (Id., p. 56:13-24).

With evidence in the record that neither Plaintiff nor, for that matter, Mr. Bralley actually

disrupted the Audit Committee meeting, and with the evidence in the record establishing

Defendant Robbins’s animosity toward Plaintiff because of his protected speech, including his

blog posts, the fact-finder could easily conclude that Defendant Robbins ejected Plaintiff for

those reasons. Indeed, the Court, in its opinion granting the preliminary injunction, agreed that

there was evidence that Defendant Robbins excluded Plaintiff out of animosity, not disruption.

Doc. 114, Order Granting Prelim. Inj., p. 11. The Court was apparently referring to Defendant

Robbins’ statement, after he ejected Plaintiff: “Before I adjourn the meeting, this can go on the

record, I was informed right after the last, well after the Governor's debate, that Mr. Mac Quigg

has been making statements derogatory and has implied that he's never done anything wrong.”

Ex. 19, Transcript of closing remarks by Defendant Robbins; Ex. 13, at Disk B, MacQuigg

001743, Track 04.

Defendant Robbins’s final argument is that he did not do anything to violate the

Plaintiff’s clearly established constitutional rights because Plaintiff did not speak at the meeting.

This, according to Defendant Robbins, demonstrates that he cannot have engaged in viewpoint

discrimination against Plaintiff. Doc. 135, Def. Br., p. 25-6. This argument, however, not only

ignores Defendant Robbins’s statements regarding Plaintiff’s prior “derogatory” remarks, but

ignores the right of a citizen not to be ejected from a public meeting unless he has caused an

“actual disruption.” See Norse at 976 (A disruption of a public meeting, to justify expulsion,

must be an “actual disruption.” “Actual disruption means actual disruption. It does not mean

constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or


54

imaginary disruption.”). Under clearly established law, Plaintiff had a right to attend a public

meeting unless his disruption was such as to justify his expulsion. Importantly, courts have

made it clear that a citizen cannot be excluded from a public meeting for a past disruption, even

if it actually had occurred, which, here, it had not. Citizens have both a state statutory right to

attend meetings that are open to the public and a federal constitutional right not to exclude

citizens from open meetings. NMSA 1978, § 10-15-1, et seq.13 See, e.g., Shero v. City of Grove,

Oklahoma, 2006 WL 3196270, 4 (N.D. Okla., 2006): “The Free Speech Clause ‘bars

government interference with the flow of information through the closure of governmental

proceedings that historically have been open to the public.’” (citing Capital Cities Media, Inc. v.

Chester, 797 F.2d 1164, 1168 (3d Cir.1986)). Furthermore, courts have consistently recognized

a citizen’s liberty interest in being on public property and have condemned expulsion or banning

from public property without prior notice and an opportunity to be heard:

Courts have held that individuals have a liberty interest in being in a public place of their choice. See City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality opinion) (“[I]t is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is a part of our heritage” (citations and internal quotation marks omitted)); Kennedy v. City of Cincinnati, 595 F.3d 327, 336 (6th Cir.2010) (holding that the plaintiff had a liberty interest “to remain in a public place of his choice”); Catron v. City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir.2011) (holding that the plaintiffs “have a constitutionally protected liberty interest to be in parks or on other city lands of their choosing that are open to the public generally”).

13 “In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. The formation of public policy or the conduct of business by vote shall not be conducted in closed meeting. All meetings of any public body except the legislature and the courts shall be public meetings, and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings. Reasonable efforts shall be made to accommodate the use of audio and video recording devices.” (Emphasis added.)


55

Here, Plaintiff has an interest in being in City Hall during publically accessible hours and

to exercise his First Amendment rights. There is no indication that Plaintiff was afforded a meaningful opportunity to be heard before the criminal trespass notice was issued that deprived him of this interest.

Cuellar v. Bernard, 2013 WL 1290215, 4-5 (W.D. Tex.).

2. Defendants are not entitled to summary judgment on Plaintiff’s due process claim.

In Count IV of his complaint, the Plaintiff alleges that the Defendants violated his due

process rights by “failing to provide Plaintiff with an opportunity to be heard at a meaningful

time and in a meaningful manner with respect to their ban on his attendance at and participation

in public meetings and that the Defendants deprived Plaintiff of his First Amendment rights

“arbitrarily and capriciously.” Doc. 22, First Amended Compl., ¶¶’s 138, 139.

To the extent that the Defendants address Plaintiff’s due process claim, they simply say it

is “derivative” of Plaintiff’s First Amendment claims (Doc. 135, Def. Br., p. 11) and that, in

order to prevail, Plaintiff must establish that he had a liberty or property interest in attending the

Board’s meetings and that he did not “afforded an appropriate level of process.” (Id., p. 13).

Defendants then go on to argue that the Plaintiff has failed to demonstrate any personal

participation by Defendants Armenta, Brooks, Chavez and Robbins in any due process violation

and that those Defendants are entitled to summary judgment. Id.

The answer to Defendants’ argument that they did not violate Plaintiff’s right to

procedural due process is two-fold. First, the Supreme Court and the Tenth Circuit have

recognized that liberty interests are frequently found in state law. “‘A state creates a protected

liberty interest by placing substantive limitations on official discretion.’” PJ ex rel. Jensen v.

Wagner, 603 F.3d 1182, 1199 -1200 (10th Cir. 2010) (quoting Olim v. Wakinekona, 461 U.S.

238 (1983)). Plaintiff’s liberty interest in attending board meetings is found in New Mexico’s


56

Open Meetings Act. NMSA 1978, § 10-15-1 A (“ All meetings of any public body except the

legislature and the courts shall be public meetings, and all persons so desiring shall be permitted

to attend and listen to the deliberations and proceedings.”). The Supreme Court has recognized

the right of citizens to attend public meetings, including school board meetings. See City of

Madison, Joint School Dist. No. 8 v. Wisconsin Employment Relations Commission, 429 U.S.

167, 97 S.Ct. 421 (U.S. Wisc. 1976) (members of public, even if they are employees of the

school, have a right to speak at school board meeting open to public). Furthermore, it has long

been established under the federal constitution that public officials cannot simply ban citizens

from public places without procedural due process. A Louisiana federal court put it this way:

The private interest, already discussed, is one of liberty and a basic freedom to move about on publicly-owned property as any other citizen is legally able to do. The risk of an erroneous deprivation of that interest would be unacceptably high if police officers were given complete and unilateral discretion to determine which citizens, without criminal charges of any kind being brought, may, for instance, visit public parks, attend governmental meetings, conduct business at the assessor's office or the Office of Motor Vehicles, visit polling stations on election days, or go swimming at the community pool. This principle has been well-established. See generally Kennedy v. City of Cincinnati, 595 F.3d 327 (6th Cir.2010); City of Chicago v. Morales, 527 U.S. 41, 54 (1999); Shuttlesworth v. Birmingham, 382 U.S. 87, 86 (1965). See also Anthony v. State, 209 S.W.3d 296 (Tx.Ct.App.2006).

Vincent v. City of Sulphur, ____F.Supp. 2d _____, 2014 WL 2003193, 6 -7 (W.D.La.,2014).

(Emphasis added.)

The evidence discussed above establishes that Defendant Esquivel, in unilaterally

expelling Plaintiff from the November 4, 2009 regular Board meeting, Defendants Armenta and

Brooks in barring the Plaintiff from the August 19, 2010 District Relations Committee meeting

and debate, and Defendants Esquivel, Brooks and Tellez in banning Plaintiff from future

meetings by issuing the September 1, 2010 letter, provided the Plaintiff with no process at all and

violated clearly established law in doing so, even without consideration of the fact that they did


57

so because, as this Court has found, they disagreed with Plaintiff’s viewpoint. All of these

events were public meetings on public property and, as such, Plaintiff had a right to be there

under New Mexico’s Open Meetings Act, even if the Defendants had not evicted him as a

consequence of his exercise of his First Amendment right to speak from any viewpoint regarding

APS matters. The Supreme Court long ago made this clear.

[T]he freedom to loiter for innocent purposes is part of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this “right to remove from one place to another according to inclination” as “an attribute of personal liberty” protected by the Constitution. Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is “a part of our heritage[,]”or the right to move “to whatsoever place one's own inclination may direct” identified in Blackstone's Commentaries.

City of Chicago v. Morales, 527 U.S. 41, 53-54, 119 S.Ct. 1849 (1999) (footnotes and citations

omitted). As to whether these principles have been “clearly established,” there can be no doubt:

Any competent government official, particularly a police officer, should have realized that he cannot deprive a person, who has not committed a crime or violated some regulation, nor was likely to do so, of access to public grounds without due process of law. Therefore, we hold that for purposes of defendants' motion for summary judgment, Kennedy possessed a constitutionally-protected liberty interest to use municipal property open to the public and that depriving him of his liberty interest, without procedural due process, constituted a violation of a clearly established constitutional right.

Kennedy v. City Of Cincinnati, 595 F.3d 327, 337 -338 (6th Cir.2010). See also, Cuellar, supra,

at id (“[N]o indication that Plaintiff was afforded a meaningful opportunity to be heard” before

being expelled from public building.

The foregoing authorities establish that in 2010 it was clearly-established law that the

Defendants could not expel the Plaintiff from future public meetings of the APS Board without

notice and a hearing.


58

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court deny the

Defendants’ motion for summary judgment in all respects.

Respectfully submitted,

FREEDMAN BOYD HOLLANDER GOLDBERG URIAS & WARD, P.A. /s/ John W. Boyd and Vincent J. Ward John W. Boyd Vincent J. Ward 20 First Plaza, NW, Suite 700 Albuquerque, NM 87102 (505) 842-9960

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I CERTIFY that on the 12th day of November, 2014, I filed the foregoing electronically

through the CM/ECF system, which caused the following parties or counsel of record to be

served by electronic means, as more fully reflected on the Notice of Electronic Filing.

/s/ John W. Boyd John W. Boyd


Documents

Response in opposition