Posted by: Patricia Salkin | June 16, 2009

First Amendment Retaliation Claims Dismissed After City Sought Removal of Critical Sign

In 1994, Camastro was unsuccessful in his efforts in obtain a zoning variance to construct a four-bay car wash on his property. As a result, without obtaining a sign permit, he put a sign on his lot that read:

“THE CITY OF WHEELING HAS CHEATED ME. THEY STOPPED ME FROM BUILDING A CAR WASH. I WAS CENSORED AT CITY COUNCIL, JULY 5TH AND NOT ALLOWED TO SPEAK. LOOK AT WHAY THEY ARE DOING TO WHEELING. I WAS STOPPED FROM PRESENTING EVIDENCE TO A GRAND JURY AGAINST CORRUPT CITY OFFICIALS.”

In 2001, the City sued Camastro in state court seeking to enforce their sign ordinance and removal of the sign. In 2008, the Court finally granted the City’s request. Camastro has claimed that on two specific occasions the City retaliated against his First Amendment right to erect the sign. Specifically, during the pendency of the litigation, one councilmember stated, “How many years does it take?…I want the city to take them down and if he wants to, he can take us to court.” Camastro claimed that a week later, his signs were torn down by unknown individuals. However, he admitted that even prior to the statement, the signs had been torn down about twenty times. Secondly, Camastro claims that his First Amendment rights were violated by a letter he received from the City Solicitor. The letter asked Camastro not to misquote the City Attorney again, cited the inaccurate information, and further asked Camastro not to contact his office or other city departments again over the phone or in person. Camastro ignored this request.

Camastro brought a 1983 action against both the Councilmember and the City Solicitor, which was dismissed by the district court since neither public official alone had final decision-making authority for the City. Camastro appealed.

The 4th Circuit Court of Appeals upheld the district court’s dismissal. With respect to the councilmember’s statement, the Court found that it did not constitute “a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow.” The Court said it was nothing more than a councilmember expressing a desire that the city take down the signs. The Court said that the councilmember was not announcing a new policy, nor was he issuing an ultimatum. Further, even if it could be construed as intimating imminent sanctions, the Court said that it was still inactionable since the City was already seeking this relief in state court.

With respect to Camastro’s claim of retaliation for his right to petition the government, Camastro admitted that he had been in touch with other city departments since the letter was issued, and that they letter was not cutting off contact with city departments. The Court concluded that the “City Solicitor’s letter, coupled with her subsequent assurances that the City would not restrict Camastro’s access to City departments, falls far short of the sort of retaliatory conduct that would ‘deter a person of ordinary firmness from the exercise of First Amendment rights.'”

Camastro v. City of Wheeling, 2009 WL 1241634 (4th Cir. 5/7/2009).

The opinion can be accessed at: http://pacer.ca4.uscourts.gov/opinion.pdf/081002.U.pdf


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