Credit to www.courthousenews.com and author, Philip A. Janquart
SAN FRANCISCO (CN) – A former city councilman who won summary judgment after a police chief threatened to arrest him for criticizing a public official has settled with the police chief and the Northern California City of Cotati.
George Barich, who describes himself as a former newspaper editor, attended an April 2014 City Council meeting where he called city Planning Commissioner Neil Hancock a “liar,” to which Hancock retorted, “You’re the liar,” according to Barich’s January lawsuit in Federal Court.
Barich, a former city councilman, told Courthouse News on Friday that despite Hancock’s contradicting report, the exchange was civilized, and he did not exhibit any expressions of physical aggression, but was nonetheless stopped by Cotati Police Chief Michael Parish after the meeting.
“When the meeting was over, I walked by Neil (Hancock) and called him a liar again, and he said ‘No, you are the one who is a liar,'” Barich said. “Everyone was leaving, but Chief Parish said, ‘George, hold it!’ and told me to go outside. When we got out there, he told me he would arrest me if I tried to record him with my phone. Then he told me if I ever called anyone from the city a liar during or after a council meeting again, he’d arrest me. He asked me, ‘Do you understand me?’ and I said, ‘I understand, but I don’t agree with you.'”
Barich’s lawsuit against Parish and the City of Cotati alleged violations of the Civil Rights Act and the First and Fourteenth Amendments.
“Parish’s unlawful threats to arrest plaintiff were not constitutionally protected speech on an issue of public interest,” according to the Jan. 24 complaint. “Parish does not have a First Amendment right to arrest, or threaten to arrest, a citizen without probable cause and in retaliation for that citizen’s expressing criticism of government and/or in retaliation for gathering information about what public officials do on public property and recording matters of public interest.”
Barich filed a motion for partial summary judgment on Sept. 9, and the defendants filed a motion for summary judgment nine days later.
U.S. District Judge Vince Chhabria ruled that there is no question that Parish violated Barich’s civil rights.
“At the time of Chief Parish’s conduct, Barich had a clearly established First Amendment right to record a police officer on public property,” Chhabria wrote in an Oct. 20 order. “Nevertheless, Chief Parish told Barich that, if he exercised his First Amendment right, he would be arrested. Chief Parish made this threat to deter Barich from recording him, and a reasonable person of ordinary firmness would in fact be deterred by this threat of arrest. For these reasons, Barich is entitled to summary judgment against Chief Parish on this claim.”
He added that since Parish is a “policymaker” for the city “Barich is also entitled to summary judgment against the city.”
Chhabria, however, found too many factual disputes about the circumstances surrounding the verbal exchanges between Barich and Hancock, and denied summary judgment on Barich’s claim that Parish violated his civil rights by threatening him for calling a city official a liar.
“For similar reasons, Chief Parish is not entitled to qualified immunity,” he ruled. “If the facts are as Barich contends, it would have been obvious to every reasonable officer that he could not threaten to arrest Barich for what he had done.”
Citing Ford v. City of Yakima, Chhabria added: “Police officers have been on notice at least since 1990 that it is unlawful to use their authority to retaliate against individuals for their protected speech.”
Barich’s attorney Carleton Briggs said the parties agreed to settle rather than take the case to a jury.
“It (the case) has been resolved amicably, but the terms were discussed in private and under the Brown Act, I am not at liberty to discuss the terms, but the city must eventually make the details public,” Briggs told Courthouse News.
Chhabria dismissed the case on Friday.
Barich said he settled because he has no other witnesses to corroborate his version of the events that unfolded at the City Council meeting and that council members and city officials have a direct interest in supporting one another and preserving their own version of what happened.
“It would have been my word against theirs,” he said.
He added: “This is an interesting case because it deals with the First Amendment, and you get all sorts of unusual elements: Are you allowed to criticize government officials? How strong can it be, and at what point is it disruptive? And are you able to record police officers?”
Barich said the answer depends on which circuit you are talking about.
“This is a particularly interesting case because the Ninth (Circuit) has a different view on qualified immunity than other circuits. They differ on that issue and ultimately the U.S. Supreme Court will have to look at it, which it has not done,” he said. “Right now there is a split on that issue about what is clearly established law.”
Cotati, a city of about 7,400 in Sonoma County, is 45 miles north of San Francisco, south of Santa Rosa. It is 72 percent white and its median household income and home value are just slightly above the state average, according to city-data.com.