The continuation of a ban prohibiting community activist Luke Skrable from entering Little Rock-owned buildings after he successfully completed probation in January on two terroristic threatening convictions violates his First Amendment rights, a federal judge has determined.
But in a written order filed last week, which expanded on her in-court ruling July 17 after a three-hour trial, U.S. Magistrate Judge Beth Deere said Little Rock Mayor Mark Stodola and City Manager Bruce Moore aren't liable for violating Skrable's rights because both are entitled to qualified immunity.
She cited case law that says, "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments" and "protects all but the plainly incompetent or those who knowingly violate the law."
Qualified immunity shields government officials from liability "unless their conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known," she said. But in this case, Deere said, the mayor and city manager didn't violate clearly established law when the term is "particularized to the facts of the case."
The trial focused on Skrable's lawsuit accusing Stodola of violating his First Amendment rights by preventing him from speaking to the city Board of Directors on Jan. 20, 2015. Skrable's lawsuit also accused Moore of violating his First Amendment rights by declining in March to lift a 12-month ban on entering city buildings uninvited that was imposed as part of Skrable's probationary sentence in the criminal case.
The ban actually lasted for two years, because it remained in effect while Skrable appealed his conviction to circuit court, but it wasn't officially imposed until 2016.
His probation was completed in January.
After testimony and arguments ended in the July 17 trial, Deere declared from the bench that there was no doubt that Stodola didn't violate Skrable's rights in refusing to let him comment during a Citizen Communication part of the meeting.
She said it was clear Stodola didn't understand the topic Skrable indicated he wanted to talk about and that Stodola believed it was the same subject Skrable had already addressed at the previous board meeting. The board's rules prohibit comment on a topic already discussed.
But Deere also said from the bench that the city "probably" went too far in continuing to extend the ban beyond Skrable's probationary period, and she promised to address that issue in writing after doing further research.
In that order, Deere said the continuing ban "is not narrowly tailored and does not provide adequate alternatives for Mr. Skrable to exercise his First Amendment rights. The continuation of the ban violates Mr. Skrable's First Amendment rights, even though his behavior in 2014 and 2015 was inappropriate and threatening at times."
As she suggested the day of the trial, Deere's order said that the city "must craft a narrowly tailored ban going forward with meaningful reassessment of the danger Mr. Skrable poses to the safety of City personnel."
On Jan. 20, 2015, after Skrable was denied an opportunity to address the board for three minutes, he struck the podium three times with an open palm and loudly asked twice, "What about my First Amendment rights?" The meeting was ending, but Stodola asked police officers present to escort Skrable out of City Hall.
Later that night, Skrable sent Moore an email saying in part, "Your days are numbered" -- a phrase that a district judge, and later a circuit judge, agreed was threatening. Skrable was convicted of terroristic threatening for that email and for a voice mail he had left at the Public Works Department in 2014 that was also deemed threatening.
Moore and Skrable indicated in testimony at the trial that there was already tension between Skrable and Moore before the email, and that years earlier, Moore had banned Skrable from approaching him directly. Moore said he had become weary of the activist's persistent and rude attempts to talk to him outside board meetings.
Moore said after this month's trial that he intended to follow the judge's directive and work on a solution to lift the ban while ensuring the protection of his family and city workers.
Metro on 07/31/2017