Posted by: Patricia Salkin | December 12, 2013

Fed. Dist. Court of GA Hold Sovereign Immunity Does Not Bar Plaintiff’s State Constitutional Claims Where Mayor Ordered Towing of a Truck with a Political/Campaign Sign

On October 9, 2010, the Plaintiffs (the Moons) parked their truck and sign in a downtown Jackson, Georgia parking lot on their way to church, believing the lot afforded optimal campaign exposure. Less than fifteen minutes later, City of Jackson Mayor Charles Brown ordered the city dispatcher to “immediately” tow the truck “with a political sign” from the parking lot. Plaintiffs’ truck was towed shortly thereafter. Mayor Brown argued that his position gives him the “power” to “enforce all ordinances of the City of Jackson,” including the City’s sign ordinance, which permits the City to remove violating signs on public property. Plaintiffs alleged that Mayor Brown violated their First and Fourth Amendment rights when he towed their truck from the parking lot.

Plaintiffs’ § 1983 suit against the City is redundant of Plaintiffs’ § 1983 suit against Mayor Brown in his official capacity. When an officer is sued under section 1983 in his official capacity, “the suit is simply another way of pleading an action against an entity of which an officer is an agent, and therefore, such suits against municipal officers are suits directly against the city that the officer represents. Since Plaintiffs have brought identical § 1983 claims against Mayor Brown in his official capacity as the claims brought against the City of Jackson, the claims against Brown in his official capacity are moot. Accordingly, summary judgment as to Plaintiffs’ § 1983 claims against Mayor Brown in his official capacity was granted by the court.
Because the court found that Mayor Brown did not have arguable probable cause to seize Plaintiffs’ truck, the court considered whether the law was clearly established so that Mayor Brown had fair warning that seizing Plaintiffs’ vehicle without probable cause would lead to liability under § 1983. In order for the law to be clearly established, it must have been in effect at the time of the alleged violation and must have been clearly established such that “a reasonable official would understand that what he is doing violates the right.” The seizure of personal property absent consent, a warrant, or probable cause is per se unreasonable in violation of the Fourth Amendment. This law was clearly established by the Supreme Court well before the October 10, 2010 seizure. Therefore, Mayor Brown had “fair warning,” and was not entitled to qualified immunity with respect to Plaintiffs’ Fourth Amendment claim; thus, Defendants’ Motion as to this claim was denied

The Eleventh Circuit has held that disfavoring political signs violates the First Amendment. By seizing the Plaintiff’s political sign the court found that Mayor Brown violated established law and was thus liable under § 1983. Consequently, Mayor Brown was not entitled to qualified immunity against Plaintiffs’ free speech claim, and Defendants’ Motion as to this claim was denied. Accordingly, the Court granted in part and denied in part the Defendants’ Motion for Summary Judgment.

Moon v. Brown, 939 F. Supp. 2d 1329, 1356 (M.D. Ga. 3/29/2013)


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