Case Summary and Outcome

A jury for the U.S. District Court for the Eastern District of Wisconsin found that Sheriff David Clarke did not violate the free speech rights of the Plaintiff with allegedly threatening Facebook posts, after an incident in which the Plaintiff shook his head at the Defendant for wearing his sport’s rivals memorabilia while boarding a plane. The Court reasoned that it had to decide whether the Defendant’s posts would deter a reasonable person from exercising his First Amendment rights and that this was a triable issue of fact to be submitted to a jury. The Judge had earlier dismissed the Plaintiff’s claims for violation of his First and Fourth Amendment rights in respect of his being questioned by deputies from the Sheriff’s department as he was leaving the plane. The Court reasoned that the encounter was brief, voluntary and in public, so that the Plaintiff did not suffer any deprivation for the purposes of the First Amendment and was not seized for purposes of the Fourth Amendment. It also dismissed his claim under the Fourteenth Amendment, violation of due process, which the Court said was without merit.

Facts

Dan Black was detained at an airport in Milwaukee for 15 minutes for shaking his head at Sheriff David Clarke before the plane’s takeoff in Dallas. Black alleged he shook his head at the sheriff because he was wearing clothes supporting the Dallas Cowboys and they were playing the Green Bay Packers at the time. After the incident, Clarke posted statements on Facebook calling Black a snowflake and insinuating threats, specifically stating, “Cheer up, snowflake … if Sheriff Clarke were to really harass you, you wouldn’t be around to whine about it.” Members of his staff encouraged Clarke to take the post down thinking it contained language that could be perceived as threatening, but Clarke refused.

The Plaintiff then brought suit alleging violation of his Fourth Amendment right against unreasonable search and seizure, retaliation for Plaintiff’s exercise of his free speech rights under the First Amendment, and violation of due process.

Decision Overview

The Judge ruled in favor of the Defendant on a motion for summary judgment, dismissing all of the pending claims, except for the claim as to First Amendment retaliation for one of the incidents. This claim went to the jury who found Plaintiff’s free speech rights were not violated.

The Court first looked at whether the Plaintiff’s Fourth Amendment rights were violated, and found that an interview he had with the Sheriff’s deputies as he left the plane did not amount to a seizure as the questions were fact gathering, no weapons or physical force was displayed, and the encounter was brief and occurred in view of the public.

The Court next looked at the Plaintiff’s First Amendment claims; retaliation for sending deputies to question him and retaliation for the Facebook comments.  In order to bring a claim for retaliation a Plaintiff must show, “(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was at least a motivating factor in the defendant’s decision to take the retaliatory action.” The Court noted that retaliatory speech by a public official must generally be threatening speech to be actionable; and in rarer instances can be actionable when humiliating or harassing. In this case the two instances complained of were the airport encounter and the Facebook posts. As to the first encounter the Court granted Defendant’s motion for summary judgment as the Plaintiff voluntarily consented to the encounter and could not show he was subject to any kind of deprivation. As to the second encounter, the mocking Facebook posts, the question for the Court was whether Defendant’s posts would deter a reasonable person from exercising their First Amendment rights. Here, the Court found a triable issue of fact to be submitted to a jury and denied the Defendant’s Motion for summary judgment.

Next, the Court turned to the issue of whether the defense of qualified immunity applied in this case. However, since the Defendant failed to argue that he was entitled to qualified immunity under the First Amendment, the Court did not address the issue.

Finally, the Court looked at the Plaintiff’s claim of a violation of due process under the Fourteenth Amendment. The Plaintiff claimed the Facebook posts placed him in a position of danger but the Court dismissed the claim for being without merit. The Court also dismissed the Plaintiff’s claim to hold Milwaukee County liable for Clarke’s violations, finding that he had failed to fully develop an argument in this regard.

On the remaining claim, namely his claim for First Amendment retaliation Black argued that he perceived the threatening language in Clarke’s Facebook posts as a threat, making him fearful which could have a chilling effect on free speech. The jury took three hours to find that Black’s free speech rights had not been violated.