Posted by: Patricia Salkin | October 16, 2015

Fed Dist Ct. in NY Denies Dismissal of Section 1983 Retaliation Claim in a Challenge to Town’s Removal of Pro-Fracking Signs

Plaintiff Edward J. Lang brought a Section 1983 action claiming defendants Town of Tusten, Igor Smetaniuk, and Gary W. Amerbach violated his First and Fourteenth Amendment rights. The First Amended Complaint alleged that on April 4, 2011, the Town Zoning Board of Appeals adopted Resolution No. 02–11, which approved a letter to be mailed to the Plaintiff, instructing him that a sign on his garage had to be removed because it failed to comply with provisions of the Town Code regulating the use of signs. The sign read “Let’s get frack’n just pass the gas”. Plaintiff alleged that defendants: selectively enforced the Sign Ordinance against him in violation of the Equal Protection Clause of the Fourteenth Amendment; enforced the Sign Ordinance against him in retaliation for his exercise of his First Amendment rights; and discriminated against him because of the viewpoint he expressed about fracking.

In analyzing the Plaintiff’s retaliation claim, the court found that Lang had a constitutionally protected right under the First Amendment to publically to advocate politically controversial viewpoints and engage in public criticism of public officials. The Court rejected defendants’ argument that the same decisions would have been made regardless of plaintiff’s speech, since there was evidence presented that discrimination could have been a “motivating factor”. As to the requirement that an actual chill be shown to protected speech, Plaintiff alleged that he was twice charged with violating the Sign Ordinance in retaliation for expressing his support of fracking in the Town and for criticizing town officials. Because Plaintiff plausibly alleged a First Amendment retaliation claim, defendants’ motion to dismiss this claim was denied. For these above mentioned reasons, the Plaintiff’s viewpoint discrimination claim likewise survived the motion to dismiss

The court found that the Code Enforcement Officer was not entitled to qualified immunity at this stage in the proceedings because if the retaliation played a substantial part in the alleged unconstitutional conduct, defendants’ conduct could not be characterized as objectively reasonable. However, the Plaintiff’s amendment of the equal protection claim would be futile because the amended claim would not survive a motion to dismiss as that claim would still be unripe.

Lang v Town of Tusten, 2015 WL 5460110 (SDNY 8/6/2015)

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