Hon. Neil Gorsuch

United States Court of Appeals for the Tenth Circuit (2006-Present)

This post reviews a case Judge Neil Gorsuch wrote concerning First Amendment retaliation and the right to petition government.[1] Cases relating to the petition clause are fairly rare, and the lower court dismissed the First Amendment claims. This case exemplifies Judge Gorsuch’s support for a full spectrum of First Amendment speech rights. (For our previous analyses of Judge Gorsuch’s views on free speech, please click here and here.)

• Van Deelen v. Johnson, 497 F. 3d 1151 (10th Cir. 2007)

The age-old battle between the property owner and the tax appraiser turned particularly foul in this Kansas case. Plaintiff Michael Van Deelen and the Board of County Commissioners of Douglas County engaged in a decades-long battle that included numerous lawsuits before arriving before Judge Gorsuch.

Van Deelen alleged a meeting with the county appraiser and a Sherriff Deputy, supposedly there to keep the peace, lurched into bureaucratic bullying. According to Van Deelen, the officer made intimidating gestures towards him, bumped him, and threatened to shoot him.

Van Deelen argued this alleged harassment injured his First Amendment right to petition the government. The test for First Amendment retaliation is three-fold: The plaintiff must show that (a) he or she was engaged in constitutionally protected activity; (b) the defendant’s actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (c) the defendant’s adverse action was substantially motivated as a response to the plaintiff’s exercise of constitutionally protected conduct.

Judge Gorsuch assumed Van Deelen’s claims are true as required by the suit’s preliminary stage. He overturned the district court’s dismissal and remands for further proceedings. Excerpts from this carefully constructed and well-reasoned opinion follow.

From the opinion:

When public officials feel free to wield the powers of their office as weapons against those who question their decisions, they do damage not merely to the citizen in their sights but also to the First Amendment liberties and the promise of equal treatment essential to the continuity of our democratic enterprise. “The very idea of a government, republican in form, implies a right on the part of its citizens … to petition for a redress of grievances.”

As to first prong:

The defendants argue vigorously that Mr. Van Deelen’s lawsuits and administrative appeals do not amount to “constitutionally protected activity” and thus fail the first prong of the . . . test. This is so, defendants submit, because Mr. Van Deelen’s activity involved only private tax disputes and not issues of “public concern.” We cannot agree.

[A] private citizen exercises a constitutionally protected First Amendment right anytime he or she petitions the government for redress; the petitioning clause of the First Amendment does not pick and choose its causes. The minor and questionable, along with the mighty and consequential, are all embraced.

The public concern test, then, was meant to form a sphere of protected activity for public employees, not a constraining noose around the speech of private citizens. To apply the public concern test outside the public employment setting would require us to rend it from its animating rationale and original context.

As to the second prong:

Mr. Van Deelen must show that the defendants’ actions caused him “to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity.” If accepted as credible by a jury, Mr. Van Deelen’s allegations of physical and verbal intimidation, including a threat by a deputy sheriff to shoot him if he brought any more tax appeals, would surely suffice under our precedents to chill a person of ordinary firmness from continuing to seek redress for (allegedly) unfair property tax assessments.

Finally, the third prong:

Mr. Van Deelen must show that defendants’ “adverse action was substantially motivated as a response to the plaintiff’s exercise of constitutionally protected conduct.” In aid of this cause, Mr. Van Deelen points us to Mr. Miles’s alleged statement, “Today you get payback for suing us,” and Deputy Flory’s alleged statement, “Johnson and Miles are mad because you sued them.” Although defendants deny making these statements, and the jury is free to so find, we cannot dispute that a reasonable jury could infer from them an impermissible retaliatory motive.

Gorsuch then considered the government’s qualified immunity defense:

Put simply, and taking as true Mr. Van Deelen’s version of the facts as we must, we hold (unremarkably, we think) that a reasonable government official should have clearly understood at the time of the events at issue that physical and verbal intimidation intended to deter a citizen from pursuing a private tax complaint violates that citizen’s First Amendment right to petition for the redress of grievances.

Judge Gorsuch remanded the case back to the district court for further proceedings.

[1] Internal citations to other cases have been omitted from the excerpts below.