Third Circuit Rules for Officials in Retaliatory Speech and Petition Case

Steven D. Schwinn, John Marshall Law School

The Third Circuit granted qualified immunity to local government officers against plaintiffs' First Amendment claims that the officers retaliated against them for exercising their speech and petition rights and directly violated their right to petition the government.

The ruling most likely ends this case.

The case arose when the Mirabellas, husband and wife who happen to be attorneys, got into a dispute with their neighbors over the neighbor's use of protected wetlands. The Mirabellas sought local government assistance in the dispute, but government officials sided with the neighbors. The Mirabellas then threatened to sue the neighbors and join the local government. So local government officials wrote to the Mirabellas that they were barred from communicating with the government or government officials (except the township attorney), and that government counsel should seek sanctions against the Mirabellas if they sued.

The Mirabellas did sue--but on First Amendment grounds, and not the underlying land-use dispute. They alleged that government officials retaliated against them for communicating with the government and directly violated their right to petition the government.

The Third Circuit ruled that the officials enjoyed qualified immunity and dismissed both claims. The court ruled that the officials did, in fact, retaliate against the Mirabellas for exercising their free speech and petition rights (based on the no-contact communication, but not on the communication threatening sanctions), but that the law wasn't clearly established at the time. In particular, the court said that "the right to be free from a retaliatory restriction on communication with one's government, when the plaintiff has threatened or engaged in litigation against the government" wasn't clearly established at the time.

The court similarly ruled that the officials violated the plaintiffs' right to petition the government, but that that right wasn't clearly established, either. The court said that "the right to be free from a restriction on communicating with one's government, when the plaintiff has threatened or engaged in litigation against the government" wasn't clearly established.

In defining the rights in this very specific way for purposes of the clearly-established prong of the qualified immunity test, the court said that Ashcroft v. al-Kidd prohibited it from "defin[ing] clearly established law at a high level of generality."

The court said that it wanted to address both prongs of the qualified immunity test--actual constitutional violation and clearly established--in order to provide some guidance on the actual contours of the rights at issue. (The court could have ruled the same way by addressing the clearly-established prong only, and punting on the actual constitutional violation prong.)