Posted by: Patricia Salkin | September 1, 2016

Fed. Dist Court in PA Finds Evidence Showing Councilman’s Actions in Refusing to Introduce Resolution to Approve Sale Were Sufficient to Deter a Person of Ordinary Fitness from Exercising His First Amendment Rights

Plaintiff Ori Feibush was self-described real estate broker and developer working primarily out of the Point Breeze section of Philadelphia, a neighborhood represented by Councilman Johnson. Defendant Philadelphia City Councilmember Kenyatta Johnson decided not to introduce a resolution into City Council approving the sale of two City-owned properties located in Point Breeze, to Feibush. The city had a long-established custom of “councilmanic prerogative” or “councilmanic privilege”, which was a custom of deference by other Councilmembers to the elected Councilperson as to matters of zoning and land sales in his or her district; thus, Johnson’s refusal to introduce the resolution in effect cancelled the sale. Feibush sued for violation of his First Amendment rights on the theories that Johnson’s decision was in retaliation for criticisms he made of the Councilman and because he challenged the Councilman for office. The jury found for Feibush and awarded him thirty-four thousand dollars $34,000. Johnson then made a renewed motion for judgment.

In order to demonstrate that Johnson retaliated against him, Feibush had to prove that: he engaged in conduct protected by the First Amendment; Johnson’s actions were sufficient to deter “a person of ordinary firmness” from exercising his constitutional rights; and there was a causal connection between the protected activity and the retaliatory action. In this case, only the second element was contended. Here, given Feibush’s testimony at trial regarding the financial impact of not being able to purchase the Lots, the Court held that the jury’s determination that this potential loss was sufficient to deter a person of ordinary firmness from exercising his constitutional rights was unreasonable.

Next, to succeed on a Monell claim, Feibush was required to show by a preponderance of the evidence that his constitutional rights were violated and that a municipal custom or policy was the “moving force” behind his injuries. Here, the court found that it was reasonable for the jury to conclude that the custom of councilmanic prerogative was the moving force behind the violation of Feibush’s constitutional rights. Specifically, Johnson would not have been able to block the sale absent the councilmanic prerogative confident that he would not be subverted by his City Council colleagues because the custom required deference by them to his decision not to introduce the resolution.

Lastly, Johnson argued that his Rule 50 motion should be granted because Feibush failed not demonstrated any evidence that Johnson was deliberately indifferent to the violation of his constitutional rights. However, Plaintiff’s Monell claim was premised on the custom of City Council and the actions of a lawmaker in accordance with that custom rather than the conduct of City employees and the City’s deliberate indifference. Accordingly, the Plaintiff was not required to present evidence regarding deliberate indifference.

Feibush v Johnson, 2016 WL 4478775 (EDPA 8/25/2016)


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