James Porter v. City of Philadelphia ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 18-3105
__________
JAMES PORTER; MARILYNN SANKOWSKI
v.
CITY OF PHILADELPHIA; BARBARA DEELEY,
INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS
THE SHERIFF OF THE CITY AND COUNTY OF
PHILADELPHIA; DARYLL STEWART, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY IN THE CITY AND
COUNTY OF PHILADELPHIA; ED CHEW,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS
COUNSEL IN THE CITY AND COUNTY OF
PHILADELPHIA; WILLIAM BENGOCHEA,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS
A SHERIFF IN THE CITY AND COUNTY OF
PHILADELPHIA; GUERINO BUSILLO, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS A SHERIFF IN
THE CITY AND COUNTY OF PHILADELPHIA; JAMES
MCCARRIE, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS A SHERIFF IN THE CITY AND COUNTY
OF PHILADELPHIA; ANGELINEL BROWN,
INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS
A SHERIFF IN THE CITY AND COUNTY OF
PHILADELPHIA; PARIS WASHINGTON,
INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS
A SHERIFF IN THE CITY AND COUNTY OF
PHILADELPHIA,
CITY OF PHILADELPHIA,
Appellant
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court Civil No. 2-13-cv-02008)
District Judge: Honorable Michael M. Baylson
______________
Argued July 1, 2019
Before: McKEE, PORTER, and RENDELL Circuit Judges
(Opinion filed: September 18, 2020)
Kimberly Y. Smith Rivera [Argued]
David C. Gibbs III
Gibbs Law Firm
2648 FM 407, Suite 240
Bartonville, TX 76226
Counsel for Appellee
Craig R. Gottlieb [Argued]
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
Counsel for Appellant
__________
OPINION OF THE COURT
__________
McKEE, Circuit Judge
We are asked to decide if the City of Philadelphia’s
unwritten policy of preventing announcements at mortgage
foreclosure sheriff’s sales is unconstitutional. Pursuant to that
policy, City employees forcibly prevented James Porter from
publicly announcing to bidders at such a sale that he and his
wife, Debra Porter, had an unrecorded interest in a property
being auctioned. Porter sued, arguing that the City’s policy
violated his First Amendment right to free speech. A jury
agreed and awarded him $750,000 in damages and the District
Court thereafter upheld that award. For the reasons that follow,
we will reverse and remand with instructions to vacate the
judgment and enter judgment in favor of the City.
2
I. FACTUAL BACKGROUND1
This dispute arises from James Porter’s interest in a
property located at 1039-55 Frankford Avenue in
Philadelphia.2 Porter co-owned that property with a partner,
and his wife held an unrecorded mortgage on the property to
secure a $2.8 million promissory note.3 Shortly after Porter’s
wife obtained her mortgage, and unbeknownst to Porter, his
partner obtained a second mortgage on the property from
Commerce Bank.4 That mortgage eventually went into default
and the property was thereafter listed for sale at a regularly
scheduled mortgage foreclosure sheriff’s sale conducted by the
City of Philadelphia.5
The Porters filed several actions regarding the
Frankford Avenue property prior to the sheriff’s sale. A
Pennsylvania state court awarded Debra damages for the title
company’s failure to record her mortgage but declined to have
it retroactively recorded.6 That ruling was not appealed and
became final.7 After Commerce Bank successfully foreclosed
on the property, the state court denied the Porters’ motion to
postpone the sale based on Debra’s alleged interest in the
1
We present the facts in the light most favorable to Porter
despite the conflicting versions of events. See Mancini v.
Northampton Cty., 836 F.3d 308, 314 (3d Cir. 2016) (quoting
In re Lemington Home for the Aged, 777 F.3d 620, 626 (3d
Cir. 2015)).
2
Port. v. City of Phila., 337 F. Supp. 3d 530, 536 (E.D. Pa.
2018).
3
Id.
4
Porter Br. at 5.
5
Porter, 337 F. Supp. 3d at 536.
6
Port. v. TD Bank, N.A., No. CIV.A. 10-7243, 2012 WL
3704817, at *2 (E.D. Pa. Aug. 27, 2012), aff’d on other
grounds, 519 F. App’x 109 (3d Cir. 2013) (per curiam).
7
While the Porters appealed other aspects of this decision,
they declined to appeal the decision regarding recordation.
Id.; see also City Br. at 9-10. Therefore, Commerce Bank’s
previously recorded mortgage had first priority as to any
buyer who purchased the property without notice of the prior
lien.
3
property.8 The Porters also filed a declaratory judgment action
in the Eastern District of Pennsylvania claiming that Debra’s
unrecorded mortgage on the property had priority over
Commerce Bank’s subsequently recorded mortgage.9 The
federal declaratory judgment action was pending at the time of
the sheriff’s sale.10
Porter also contacted the Sheriff’s Office directly
several times before the sheriff’s sale in an effort to inform that
office about his wife’s alleged interest in the property and the
outstanding federal lawsuit.11 Porter planned to yet again assert
his interest in the property at a hearing regarding the
foreclosure in state court the day before the sheriff’s sale, but
the judge cancelled the hearing and allowed the sale to
proceed.12
8
Id. at *2-3.
9
Porter, 337 F. Supp. 3d at 536; App. 636-37.
10
Ohio App. 636-37. After the sheriff’s sale, the District Court
granted summary judgment to the defendant on preclusion
grounds based on the Pennsylvania Superior Court’s decision
declining to retroactively record Debra’s mortgage, and we
affirmed in an unreported per curiam opinion. See Porter v.
TD Bank N.A., 519 F. App’x 109, 110 (3d Cir. 2013).
11
Porter, 337 F. Supp. 3d at 536 (“Porter had gone to the
Sheriff’s office on several occasions, trying to prevent the
sheriff’s sale of the property proceeding, and alternatively
attempting to ensure that whoever bought the property at the
sheriff’s sale was aware of the pending declaratory judgment
action.”); App. 639.
12
Ohio App. 637; Porter Br. at 5. In his brief, Porter claims that the
foreclosure court cancelled this hearing “in reliance on the
bank’s representation” that an announcement would be made
at the sheriff’s sale. Porter Br. at 16. However, Porter
provides no support for his contention that the court relied on
the bank’s agreement to make an announcement when
cancelling the hearing. In his trial testimony, Porter makes no
mention of the reason for the sua sponte cancellation. App.
638; see also App. 373-74 (discussing the cancelled hearing,
Porter’s attorney makes no mention of the reason for the
cancellation). Moreover, these assertions do not alter our
analysis or conclusion. We mention them only to more fully
explain the context in which the sheriff’s sale took place.
4
Undeterred and determined to warn potential bidders
about his wife’s alleged interest in the property, Porter sought
Commerce Bank’s assurance that it would inform bidders at
the sheriff’s sale about the pending lawsuit regarding the
property.13 Accordingly, Porter’s attorney e-mailed Commerce
Bank’s attorney to confirm that “the bank will make sure that
the sheriff announces the existence of the federal court action
at the sheriff’s sale to potential bidders.”14 Porter’s attorney
also sent Porter an e-mail stating:
Jim, I’m just confirming what I told you to do
today if the bank does not announce [Debra’s]
lawsuit at the sale. You are to say that Deb has
filed a federal lawsuit claiming she has an
unrecorded mortgage which would survive the
sheriff’s sale.15
Porter—accompanied by his wife, brother, and
mother—attended the sheriff’s sale on January 4, 2011 to
ensure potential bidders were warned about the potential
lawsuit.16 Commerce Bank’s attorney never arrived at the
sheriff’s sale. Thus, when the property came up for sale, Porter
stood up and began reading his attorney’s email in an attempt
to make the announcement himself.17 Shortly after Porter
began speaking, Edward Chew, an attorney for the Sheriff’s
Office, and Deputy Sheriff Daryll Stewart charged Porter and
ordered him to stop speaking.18 Chew grabbed Porter by the
arm and signaled for the deputies to assist. They then “pulled
Porter by the collar, put Porter in a chokehold, placed him in
handcuffs, hit him with a stun gun, and eventually dragged him
from the room.”19 Porter and at least one deputy required
medical attention as a result of the scuffle.20 Porter was arrested
13
Porter, 337 F. Supp. 3d at 536; Porter Br. at 6.
14
Ohio App. 362-63.
15
Porter, 337 F. Supp. 3d at 536.
16
Porter Br. at 6.
17
Porter, 337 F. Supp. 3d at 536.
18
Id.
19
Id.
20
Id.
5
and later convicted of misdemeanor resisting arrest, although
he was acquitted of all other charges.21
II. PROCEDURAL HISTORY
Porter sued the City of Philadelphia and various
individuals in their official capacities in state court alleging
that their conduct during the sheriff’s sale violated his First
Amendment right to free speech. The defendants thereafter
removed the suit to the United States District Court for the
Eastern District of Pennsylvania.22 There, Porter insisted on
representing himself and proceeded pro se. The District Court
closely supervised the case and conducted extensive pretrial
proceedings to ensure Porter had a fair trial.23 Porter’s civil
rights claims included a Monell claim against the City based
upon its unwritten policy of not allowing any non-bidder to
comment at sheriff’s sales.24
At trial, the court instructed the jury that “Mr. Porter had
a constitutionally-protected right to speak at the sheriff’s sale
in order to make the announcement that had been discussed
with [his] attorney. In other words, no person employed by the
21
Id.; see also Porter Br. at 9.
22
Porter, 337 F. Supp. 3d at 537. Porter’s mother, Marilyn
Sankowski was a co-plaintiff and alleged that the Sheriff’s
Office attorney, Edward Chew, used excessive force against
her by grabbing her during the exchange. Id. at 539.
Sankowski succeeded at trial against Chew and did not
appeal. Id. at 543.
23
Id. at 537. Indeed, the District Court is to be commended
for the manner in which it conducted the rather involved
pretrial hearings as well as the trial itself.
24
Monell v. Dep’t of Soc. Servs. of City of New York, 436
U.S. 658 (1978). The District Court initially ruled that Porter
had waived this claim and dismissed it. However, after the
City’s witnesses conceded that the City had an unwritten
policy of not allowing comments at sheriff’s sales, the court
reinstated that claim over the City’s objection and the claim
was submitted to the jury. Inasmuch as we conclude that the
City’s policy did not violate Porter’s First Amendment rights,
we need not address the City’s argument that the court erred
in reinstating the Monell claim.
6
sheriff’s office, whether a law enforcement officer or not, had
any right to interfere with their making such an
announcement,” and that the sheriff’s policy against
announcements “as applied to the plaintiff[] at the hearing, was
in violation of [his] constitutional right to freedom of speech
and to petition.”25
The jury returned a verdict for Porter on the Monell
claim and awarded him $750,000 in damages.26 The jury also
awarded Porter $7,500 on his claim against Edward Chew for
retaliating against Porter for the exercise of his First
Amendment rights.27 The District Court denied the City’s
motions for judgment as a matter of law, a new trial, or
remittitur. The court found that the policy banning comments
during the sheriff’s sale was not a reasonable time, place, and
manner restriction because Porter did not have ample
alternatives to communicate his message, the ban was
viewpoint discriminatory, and the policy was not narrowly
tailored.28 The court ruled that remittitur was not warranted
because the $750,000 award was neither a violation of due
process nor “so grossly excessive as to shock the judicial
conscience.”29 This appeal followed.
III. STANDARD OF REVIEW
We review the denial of judgment as a matter of law de
novo. To the extent that the District Court’s denial is based
30
on its application of the nonpublic public forum test to the facts
of this case, we also review the decision de novo.31 We review
25
Ohio App. 972-73.
26
Porter, 337 F. Supp. 3d at 543.
27
Id. However, the court granted Chew’s motion for
judgment as a matter of law and Porter did not appeal that
ruling. Thus, only the propriety of the verdict in favor of
Porter on his Monell claim is before us.
28
Id. at 552-53.
29
Id. at 554 (quoting Cortez v. Trans Union, LLC, 617 F.3d
688, 718 (3d Cir. 2010)).
30
Acumed LLC v. Advanced Surgical Servs. Inc., 561 F.3d
199, 211 (3d. Cir. 2009).
31
See Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089,
1095 (3d Cir. 1995) (“In reviewing a district court’s denial of
7
the evidence in the light most favorable to the non-moving
party and enter judgment as a matter of law if, upon review of
the record, “there is insufficient evidence from which a jury
reasonably could find liability.”32
IV. DISCUSSION
“Nothing in the Constitution requires the Government
freely to grant access to all who wish to exercise their right to
free speech on every type of Government property without
regard to the nature of the property or to the disruption that
might be caused by the speaker’s activities.”33 A city’s liability
for an alleged First Amendment violation must be based upon
a policy or custom of the city rather than upon the act of an
individual city employee.34 Accordingly, when a First
Amendment challenge is brought against a city, we must first
determine what official city policy or custom is at issue for the
purposes of § 1983, and then identify and apply the correct
First Amendment principles to that policy based on the nature
and use of the government owned or controlled forum where
the speech occurred.
A. Characteristics of Philadelphia’s Sheriff’s Sales
A mortgage foreclosure sheriff’s sale is a court-ordered
public auction of foreclosed properties organized by the
government.35 A mortgage holder can initiate a foreclosure
a motion for a new trial[,] . . . if the court’s denial of the
motion is based on application of a legal precept, our review
is plenary . . . .”).
32
Mancini, 836 F.3d at 314 (quoting Lightning Lube, Inc. v.
Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)).
33
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473
U.S. 788, 799-800 (1985).
34
Monell, 436 U.S. at 690.
35
Porter, 337 F. Supp. 3d at 547 (describing the sheriff’s sale
as “a public auction of real property, carried out by a
governmental entity, pursuant to a state statute providing for
orderly and public opportunity to acquire properties that have
been foreclosed upon for failure to pay outstanding
mortgages.”); Philadelphia Sheriff’s Dep’t, Everything You
Need to Know About Sheriff Sales,
8
action against a property owner who has defaulted on a
mortgage and obtain a judgment in foreclosure.36 The
mortgage holder can then obtain and file a writ of execution
directing the sheriff to sell the property at a public auction.37 It
is the sheriff’s duty to conduct sheriff’s sales and set policies
and procedures for these auctions.38 In Philadelphia, sheriff’s
sales take place once a month in a room about four times the
size of a typical courtroom.39 Maintaining an orderly
environment is necessary to efficiently sell hundreds of
properties and avoid chaos.40 Because hundreds of foreclosed
properties are sold at each auction, the auction is conducted
with the decorum of a courtroom.41 In an effort to maintain
such an environment, the sheriff has adopted an unwritten
policy barring comments or announcements from non-
https://www.officeofphiladelphiasheriff.com/en/real-
estate/how-sheriffs-sales-work (last visited Sept. 3, 2020).
36
Ohio App. 965-66.
37
Id. at 966-67; see also App. 504 (explaining that the
Sheriff’s Office is “acting [as] the court’s arm selling . . .
property” at a sheriff’s sale).
38
See, e.g., App. 966; City Br. at 8-9; App. 384 (describing
the duty of the sheriff to “[m]ake sure the sheriff’s sale[s] run
accordingly.”); see also Pa. R.C.P. 3129.1, 3129.2, 3129,3,
and 3135 (describing the procedures of and the sheriff’s
duties regarding sheriff’s sales); 68 Pa. Stat. and Cons. Stat.
Ann. § 2310 (West) (providing for a commission to be paid to
the sheriff for the service of conducting mortgage
foreclosures sales); 42 Pa. Stat. Ann. § 21104(b)-(c) (same);
43 Pennsylvania Law Encyclopedia, Sheriffs and Constables
§ 89 (2019) (“It is the duty of a sheriff to make a sale of a
judgment debtor’s property in accordance with the court’s
writ.”).
39
City Br. at 8.
40
Ohio App. 504; City Br. at 8.
41
Ohio App. 390-91; 504.
9
bidding42 members of the public during the sale.43 A property
owner, or his or her attorney, may present a court order or
bankruptcy petition to stop or postpone the sale when a
property comes up for auction, but all other comments are
prohibited.44
B. Monell Claims under § 1983
Pursuant to the Supreme Court’s holding in Monell, a
city is only liable under § 1983 for constitutional violations that
are caused by its official policies and customs.45 “[A]
municipality cannot be held liable solely because it employs a
42
To the extent that a bid and directly related speech (i.e.
offering a price) can be construed as a public announcement,
naturally this is allowed. That is how we understand the
City’s references in its brief, see City Br. at 8, 19, 24, to the
policy prohibiting “non-bidders” from speaking. See also City
Br. at 19 (“[I]t is inherently reasonable to preclude all non-bid
comments during an auction . . .”). Nowhere does the City
argue, nor do we imply, that the ban on public
announcements allows bidders to make public
announcements unrelated to bids.
43
The District Court concluded that “the uncontroverted
evidence [is] clear that the Sheriff’s Office had a policy of
forbidding announcements at sales.” Porter, 337 F. Supp. 3d
at 548. This is consistent with the testimony of several
witnesses from both Porter and the City, including Sheriff
Barbara Deeley. Id. at 547 (“The defendant Sheriff at trial
admitted . . . the existence of a policy forbidding
announcements at Sheriff’s sales.”); see also id. at 539-40;
App. 390; App. 504-05.
44
City Br. at 8-9.
45
Monell, 436 U.S. at 690 (“Local governing bodies . . . can
be sued directly under § 1983 for monetary, declaratory, or
injunctive relief where . . . the action that is alleged to be
unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.”); see also Baloga v.
Pittston Area Sch. Dist., 927 F.3d 742, 761 (3d Cir. 2019)
(explaining that a municipality is only liable for a policy or
custom promulgated by an actor with final decision-making
authority).
10
tortfeasor . . . in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior theory.”46 A
policy need not be passed by a legislative body, or even be in
writing, to constitute an official policy for the purposes of §
1983. A pertinent decision by an official with decision-making
authority on the subject constitutes official policy.47 Therefore,
we must first determine whether the conduct that gave rise to
Porter’s First Amendment claim was pursuant to an official
policy or custom. If it was, that conduct could support Porter’s
Monell claim. In contrast, if the conduct was simply that of an
individual employee who was not acting pursuant to a policy
or custom, that conduct cannot give rise to municipal liability
under Monell.
As the District Court explained, there is uncontroverted
evidence from multiple witnesses, including Sheriff Deeley,
that the City had an unwritten policy prohibiting comments
during sheriff’s sales.48 Sheriff Deeley testified that she had a
duty to “[m]ake sure the sheriff’s sale[s] run accordingly”49
and the District Court instructed the jury that “[o]ne of the
duties of the Sheriff is to conduct sheriff’s sales.”50 Likewise,
the District Court instructed the jury that “[t]he policy or
custom at issue here, as testified by representatives of the
sheriff’s office, is not to allow announcements or statements at
a sheriff’s sale,”51 and furthermore that there was not “any
dispute” that “[t]he Sheriff’s Office had the policy not to allow
46
Monell, 436 U.S. at 691.
47
Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84
(1986) (“Municipal liability under § 1983 attaches where . . .
a deliberate choice to follow a course of action is made from
among various alternatives by the official or officials
responsible for establishing final policy with respect to the
subject matter in question.”).
48
Porter, 337 F. Supp. 3d at 548.
49
Ohio App. 384.
50
Ohio App. 966; see also Pa. R.C.P. 3145 (describing the sheriff’s
legal duties regarding sheriff’s sales); App. 504 (explaining
that the Sheriff’s Office is “acting [as] the court’s arm selling
. . . property” at a sheriff’s sale).
51
Ohio App. 980.
11
announcements at sheriff’s sales.52 We therefore conclude that
the City’s policy of precluding public announcements at
sheriff’s sales was an official policy of the City for purposes of
§ 1983 liability under Monell.
Given Porter’s allegation that policy was subjectively
and inconsistently enforced, it may have been preferable to
submit the existence, nature, and reasonableness of the policy
to the jury.53 Nevertheless, the District Court removed any
possibility that the jury would consider this issue when it
instructed the jury that the sheriff’s office had a policy against
announcements that was unconstitutional as applied to the
plaintiffs.54 The jury was therefore not called upon to
determine the contours of the City’s policy or its
reasonableness. We review the District Court’s conclusion
regarding the existence and nature of the policy de novo. We
credit its ruling that the policy prohibiting public comments
existed, but we disagree with the analysis the followed from
that finding.
The District Court held that the City’s policy violated
Porter’s First Amendment right to free speech. In doing so, it
52
Ohio App. 1013 (“You heard testimony about the policy. I don’t
think there’s any dispute about it. The Sheriff’s Office had the
policy not to allow announcements at sheriff’s sales.”).
53
See App. 6-9 (Verdict Sheet).
54
See App. 972-73 (“You have heard testimony that the
sheriff’s office had a policy against announcements. I instruct
you that this policy, as applied to the plaintiffs at the hearing,
was in violation of their constitutional right to freedom of
speech and to petition. Plaintiff’s [sic] attempt to speak was in
furtherance of their constitutional right to speak and to
petition.”); see also App. 981 (“I instruct you that the
Sheriff’s policy was violative of the First Amendment if you
find it was relied on by Defendants Chew and Stewart or the
employees of the sheriff’s office to cause Porter to be
interrupted and seized as he was speaking.”); App. 1013
(“The Sheriff’s Office had the policy not to allow
announcements at sheriff’s sales . . . if you find that that
policy was applied as to Mr. Porter, that was a violation of his
constitutional rights—the policy was, for which the city is
liable.”).
12
relied upon Chew’s testimony that he did not allow
announcements that could depreciate the value of an auctioned
property in concluding that the policy discriminated based on
viewpoint.55 The District Court also concluded that a
“plausible nexus or affirmative link” between the City’s policy
prohibiting announcements during the sheriff’s sale and
Chew’s “brutal implementation [of the policy] through
physical force” is sufficient to hold the City liable under
Monell.56 Similarly, Porter acknowledges that “the evidence
established that the City had a policy of not allowing
announcements at sheriff’s sales,” but maintains that Chew
“inconsistently enforced it based on what the speaker wanted
to say.”57
However, Porter has not shown that Chew was a
policymaker.58 To the extent the District Court suggests that
the City is liable for Chew’s individual decision-making, we
cannot agree. His unendorsed actions, without more, did not
become municipal policy or give rise to municipal liability
under Monell. There is no evidence to suggest that municipal
decision-makers were aware of Chew’s inconsistent
implementation of the no-comment policy or that Chew had
previously used force to enforce it with the tacit approval of
policymakers.59 To the contrary, trial testimony indicates that
the Sheriff’s Office’s policy was to ask people who tried to
make announcements to sit down and, if they did not comply,
55
Porter, 337 F. Supp. 3d at 552-53.
56
Porter, 337 F. Supp. 3d at 553.
57
Porter Br. at 11.
58
Kelly v. Borough of Carlisle, 622 F.3d 248, 264-65 (3d Cir.
2010) (rejecting a § 1983 plaintiff’s Monell claim where
plaintiff “presented no evidence that [the chief of police] was
a final policymaker for the Borough” whose actions or
decisions subjected the City to liability).
59
See City of St. Louis v. Praprotnik, 485 U.S. 112, 130
(1988) (“[T]he mere failure to investigate the basis of a
subordinate’s discretionary decisions does not amount to a
delegation of policymaking authority, especially where . . .
the wrongfulness of the subordinate’s decision arises from a
retaliatory motive or other unstated rationale.”).
13
to escort them out of the hall.60 Furthermore, one Sheriff’s
Office clerk testified that the violent response was something
he “[had] never [seen] . . . before” at a sheriff’s sale and agreed
that it was “out of character of the normal conduct of
business.”61 While the District Court found that the deputies
approached Porter “at the request of Chew”62 and that “Chew
apparently asked for such a response,”63 the fact that Chew
apparently had the authority to direct the deputies to stop Porter
from speaking does not make his decision to do so City policy.
“The fact that a particular official . . . has discretion in the
exercise of particular functions does not, without more, give
rise to municipal liability based on an exercise of that
discretion.” 64 Rather, “[t]he official must also be responsible
for establishing final government policy respecting such
activity before the municipality can be held liable.”65 Thus, we
cannot conclude that Chew’s unofficial determination of how
and when the policy was to be enforced, in contravention of the
City’s clear and nondiscriminatory policy prohibiting all
comments, gives rise to liability under Monell.
60
Ohio App. 336 (testifying about his experience witnessing over
600 sheriff’s sales, Sheriff’s Office clerk Richard Tyer
explained that people who attempt to make announcements
are “told to sit down,” and “if they don’t comply, then they’ll
be escorted out.”); see also App. 466 (Sheriff’s Office clerk
Michael Riverso testifying that individuals making
announcements are told to sit down); App. 552-53 (Witness
Daryll Stewart explaining that procedure when someone
stands up to make an announcement is to “ask them to step to
the side” and then deal with the person’s issue individually).
61
Ohio App. 468.
62
Porter, 337 F. Supp. 3d at 552.
63
Id. at 553.
64
Pembaur, 475 U.S. at 481-83 (internal citation omitted).
65
Id.; see also Praprotnik, 485 U.S. at 129 (finding that even
decisions by supervisory employees that are not reviewed by
any higher official are not necessarily official city policy for
purposes of § 1983 if the employee does not have
policymaking authority); Kelly, 622 F.3d at 265 (holding that
a city is not liable for a police officer’s decision to arrest the
plaintiff in a § 1983 suit because the decision was not
reviewed and ratified by a municipal policymaker).
14
C. First Amendment Forum Analysis
Having identified the City’s policy for the purposes of
§ 1983 liability, we next must determine the First Amendment
principles applicable to speech at a mortgage foreclosure
sheriff’s sale. Because Porter’s speech is not obscene, geared
towards the incitement of violence, or libelous, it is undeniably
protected by the First Amendment.66 Accordingly, we can
proceed directly to a discussion of the forum to determine the
extent to which the City could limit Porter’s right to free speech
during a sheriff’s sale. When it comes to First Amendment free
speech challenges, “not every public property is the same, and
different types of property will require different treatment.”67
There are three types of protected forums for speech occurring
on government owned or controlled property.68 The type of
forum in which the relevant speech takes place “determines the
contours of the First Amendment rights that a court recognizes
when reviewing the challenged governmental action.”69
Traditional public forums are places that the
government has historically held out for speech and assembly,
such as public streets and parks.70 Traditional public forums
are entitled to the greatest protection of speech. Accordingly,
any content-based restrictions will receive strict scrutiny.71
66
See Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282-83
(3d Cir. 2004) (“[E]xcept for certain narrow categories
deemed unworthy of full First Amendment protection—such
as obscenity, ‘fighting words’ and libel—all speech is
protected by the First Amendment.”).
67
NAACP v. City of Phila., 834 F.3d 435, 441 (3d Cir. 2016)
(explaining that “the Supreme Court has grouped public
properties along a spectrum” where First Amendment
protections are determined based on the nature and use of the
public property).
68
Id.
69
Galena v. Leone, 638 F.3d 186, 197 (3d Cir. 2011); see
also See United States v. Marcavage, 609 F.3d 264, 274 (3d
Cir. 2010) (“The degree of First Amendment protection a
speaker enjoys depends on the type of forum in which his
expressive activity occurred.”).
70
NAACP, 834 F.3d at 441.
71
Id.
15
While the government may impose reasonable time, place, and
manner restrictions on speech, viewpoint-based restrictions are
prohibited.72 Designated public forums are properties that have
“not traditionally been regarded as a public forum [but are]
intentionally opened up for that purpose.”73 When the
government opens a forum for speech-related activity, the
same standards apply as in a traditional public forum.74 Finally,
a nonpublic forum (or limited public forum) is a public
property that has “not, as a matter of tradition or designation,
been used for purposes of assembly and communication.”75
72
Minn. Voters Alliance v. Mansky, 138 S. Ct. 1876, 1885
(2018).
73
Id. (quoting Pleasant Grove City, Utah v. Summum, 555
U.S. 460, 469 (2009)).
74
Id.
75
Id. The “nonpublic forum” has also sometimes been
referred to as the “limited public forum,” creating confusion
about whether there is a difference between these two
classifications. As we explained in NAACP, the Supreme
Court recently has used the terms “limited public forum” and
“nonpublic forum” interchangeably, suggesting that, if there
is a distinction, these two categories are afforded the same
treatment. Id. at 441 n.2; see also Galena, 638 F.3d at 197 n.8
(acknowledging the inconsistency among federal court and
Supreme Court opinions on whether “limited public forum”
and “nonpublic forum” are separate and distinct categories,
but suggesting the Supreme Court has recently used the terms
interchangeably). We will follow the Supreme Court’s most
recent application of the forum analysis in Mansky, 138 S. Ct.
at 1885. There, the Supreme Court identified the three forums
as traditional public forum, designated public forum, and
nonpublic forum and applied the definition and legal test to
the “nonpublic forum” that this Court has applied to the
“limited public forum.” Id. We need not resolve today the
lingering doubt about the distinction between a “nonpublic”
and “limited public” forum. The parties here agree that the
sheriff’s sale is a “limited public forum,” which, for our
purposes, we find synonymous with the nonpublic forum. We
will therefore apply the principles of the nonpublic forum, as
discussed in Mansky, to the sheriff’s sale.
16
Rather, it is “a forum that is limited to use by certain groups or
dedicated solely to the discussion of certain subjects.”76
A nonpublic forum is entitled to lesser First
Amendment protection than the other two forums.
Accordingly, the government is allowed “much more
flexibility to craft rules limiting speech.”77 “The government
may reserve such a forum ‘for its intended purposes,
communicative or otherwise, as long as the regulation on
speech is reasonable and not an effort to suppress expression
merely because public officials oppose the speaker’s view.’”78
Content-based restrictions on speech are valid so long as they
are reasonable in light of the purpose of the forum and
viewpoint neutral.79
The parties conceded that the sheriff’s sale is a limited
public forum, and the District Court agreed.80 To the extent that
the District Court adopted the definition and legal test
applicable to the “nonpublic forum” as outlined by the
Supreme Court in Mansky, we agree and find the two terms
interchangeable for the purpose of a First Amendment forum
analysis here. However, to the extent that the District Court
applied the test for a “time, place, and manner” restriction to
the City’s no announcement policy, we will reverse course.
The Supreme Court in Mansky made a distinction between
traditional and designated public forums, where restrictions on
the time, place, and manner of speech are subject to certain
76
Pleasant Grove, 555 U.S. at 470.
77
Mansky, 138 S. Ct. at 1885.
78
Id. (quoting Perry Educ. Ass’n. v. Perry Local Educators’
Ass’n., 460 U.S. 37, 46 (1983)).
79
NAACP, 834 F.3d at 441.
80
Porter, 337 F. Supp. 3d at 547. The City briefly questions
whether a forum analysis applies to the sheriff’s sale as a
“Court-like proceeding,” but agrees that if a forum analysis
applies that the auction is a limited public forum. City Br. at
22-23, n.5. Although the auction apparently maintains the
decorum of a courtroom and is described as similar to a court
proceeding, it is not a formal judicial proceeding, and we
therefore maintain that a forum analysis applies to the
sheriff’s sale.
17
limitations,81 and the nonpublic forum, where “on the other
hand . . . the government has much more flexibility to craft
rules limiting speech.”82 The Supreme Court discussed the
government’s right to “impose reasonable time, place, and
manner restrictions on private speech,” subject to certain
restrictions, only in reference to the traditional and designated
public forums.83 This is consistent with the Court’s explanation
that the nonpublic forum is subject to “a distinct standard of
review . . . because the government, ‘no less than a private
owner of property,’ retains the ‘power to preserve the property
under its control for the use to which it is lawfully
dedicated.’”84 We therefore decline to apply the three-part test
appliable to time, place, and manner restrictions to the
nonpublic forum at issue here.
Moreover, the District Court stated that the Sheriff’s
Office “has no right to forbid an individual with an interest in
the property making a short statement as to the individual’s
interest in the property being offered for sale.”85 We disagree.
As the government entity charged with conducting sheriff’s
sales, the Sheriff’s Office has the right to limit speech in
accordance with the First Amendment principles applicable to
nonpublic forums.86 During the sheriff’s sale, the space utilized
81
A time, place, and manner restriction is reasonable if it: 1)
is content-neutral; 2) is narrowly tailored to serve an
important government interest; and 3) leaves open ample
alternatives for communication of the information. Galena,
638 F.3d at 199.
82
Mansky, 138 S. Ct. at 1885 (citations omitted).
83
Id.
84
Id. (quoting Adderly v. Florida, 385 U.S. 39, 47 (1966)).
85
Porter, 337 F. Supp. 3d at 547.
86
Similarly, although the District Court introduced the
concept of a forum analysis to the jury at trial, it essentially
removed any possibility of the jury’s assessing the
constitutionality of the City’s policy in a limited or nonpublic
forum when it instructed the jury that “Mr. Porter had a
constitutionally-protected right to speak at the sheriff’s sale in
order to make the announcement that had been discussed with
their attorney,” App. 972, and that “the sheriff’s office had a
policy against announcements,” which, “as applied to the
plaintiffs at the hearing, was in violation of their
18
is limited to use by the Sheriff’s Office for the exclusive
purpose of holding a public auction of foreclosed properties.
Because the sheriff’s sale is a nonpublic forum, the Sheriff’s
Office policy prohibiting comments during the auction is valid
so long as it is viewpoint neutral and reasonable in light of the
City’s right “‘to preserve the property under its control for the
use to which it is lawfully dedicated[:]’” conducting a public
auction of foreclosed properties.87
D. First Amendment Analysis of the Sheriff’s Office’s
No Comment Policy
We conclude that the Sheriff’s Office’s policy
prohibiting comments during the sheriff’s sale is a reasonable,
viewpoint neutral speech restriction aimed at protecting the
Sheriff’s Office’s ability to sell hundreds of foreclosed
properties in a single auction.88 Moreover, any abuse of
discretion by Chew in enforcing a clear and non-discriminatory
policy prohibiting all comments does not alone give rise to
municipal liability.
1. Reasonableness
We hold that the policy forbidding public comments
during sheriff’s sale auctions is a reasonable speech restriction
that serves the purpose of the sheriff’s sale: the orderly
disposition of hundreds of properties in a single auction.
Because this is a nonpublic forum, the government is not
required to adopt the least restrictive policy nor show that the
policy is narrowly tailored to protect a compelling
constitutional right to freedom of speech and to petition,”
App. 973. The City contends that this directed the jury’s
verdict. We agree.
87
Id.
88
Our discussion here is focused on the mortgage foreclosure
sheriff’s sale and the unique circumstances and requirements
of such a forum. The specific analysis does not necessarily
apply to other types of nonpublic forums. This is particularly
true of our discussion of reasonableness. Any analysis of
reasonableness must focus on the needs of the speaker to
communicate a given message as well as the needs of the
forum in which s/he wants to speak.
19
government’s interest.89 Rather, the government need only
“draw a reasonable line” and “be able to articulate some
sensible basis for distinguishing what may come in from what
must stay out.”90
During an auction—described as a court-like
proceeding—all speech by non-bidders is inherently
disruptive.91 An auction requires a clear and direct line of
communication between bidders and the auctioneer in order to
complete each sale, especially in a room with hundreds of
people. “[T]he interruption of the order of business is itself the
disturbance” that the City’s policy seeks to avoid.92 Allowing
public comments during the sheriff’s sale would threaten the
Sheriff’s Office’s ability to conduct an auction, a proceeding
specifically provided for under Pennsylvania law.93 As the City
explains, “public comment or discussion of a property would
undoubtedly bog down a sale and cause chaos.”94 The Sheriff’s
Office therefore prohibits public announcements and further
requires an interested person to obtain a court order or present
a bankruptcy petition in order to stop a sale.95 The requirement
89
NAACP, 834 F.3d at 441.
90
Mansky, 138 S. Ct. at 1888; see also NAACP, 834 F.3d at
441 (“[T]he Government’s decision to restrict access . . . need
only be reasonable; it need not be the most reasonable or the
only reasonable limitation”) (internal quotation marks and
citation omitted).
91
Ohio App. 390-91 (explaining that the sheriff’s sale maintains
the decorum of a court proceeding).
92
Galena, 638 F.3d at 212.
93
See Mansky, 138 S. Ct. at 1885 (“[T]he government . . .
retains the power to preserve the property under its control for
the use to which it is lawfully dedicated.”) (internal quotation
marks and citation omitted).
94
City Br. at 27-28 n.7; see also App. 504-05 (according to
Chew’s testimony: “Can you imagine if everyone . . . stood
up and made an announcement for every one of those
properties? It would be chaos.”).
95
Although enforcing the order (and thereby stopping the
sale) will generally signal to the public that the property is no
longer for sale, this does not convert the order into a public
comment or announcement. Even if we were to construe this
rule as a content-based restriction (i.e. a person with a court
20
that a property owner take advantage of the available court
processes to obtain an order or petition staying or postponing
the sale, rather than make unsubstantiated public claims about
his or her interest in a property, is a “sensible basis for
distinguishing what may come in from what must stay out.”
Therefore, the City’s policy prohibiting public comments
during the auction, in the absence of a court order or
bankruptcy petition, is a reasonable way to promote the
efficient sale of properties by auction. Porter attempted to
obtain such an order—several times—and failed.96 The City’s
reasonable policy therefore applied to Porter.
The City’s policy prohibiting all public announcements
is distinguishable from the state statute the Supreme Court
found unconstitutional in Mansky.97 There, Minnesota banned
voters from wearing any political badges, political buttons, or
political insignia inside a polling place on election day.98 The
ban applied to any item “promoting a group with recognizable
political views.”99 The Supreme Court found that this law
violated the First Amendment right to free speech because it
left the word “political” undefined and thereby granted
unfettered discretion to election judges to determine what was
prohibited.100 In the Court’s view, the “unmoored use of the
term ‘political’ in the Minnesota law” left election officials
without “objective, workable standards” to guide their
discretion.101 “A rule whose fair enforcement requires an
election judge to maintain a mental index of the platforms and
order or bankruptcy petition may announce that the property
is no longer for sale), such restrictions are allowed in a
nonpublic forum. NAACP, 834 F.3d at 441 (explaining that,
in a nonpublic forum, “[c]ontent-based restrictions are valid
so long as they are reasonable and viewpoint neutral.”).
Because the court had denied Porter’s repeated motions to
stay or postpone the sale, Porter—as well as his attorney and
Commerce Bank’s attorney (had they been present)—was
bound by the policy prohibiting public announcements.
96
City Br. at 27.
97
138 S. Ct. 1876.
98
Id. at 1882.
99
Id. at 1890.
100
Id. at 1888.
101
Id. at 1888, 1891.
21
positions of every candidate and party on the ballot is not
reasonable.”102 Because the “indeterminate prohibition” was
not “capable of reasoned application,” the restriction “fail[ed]
even [the] forgiving test” for reasonableness in a nonpublic
forum.103
Here, in contrast, there is no issue of an indeterminacy:
all public announcements are prohibited. Unlike Minnesota’s
law that required election judges across the state to individually
interpret and apply their own definition of “political,” the
City’s policy does not require the Sheriff’s Office to interpret
the content of the speaker’s message in order to determine if it
is allowed. Instead, the policy requires the Sheriff’s Office to
stop anyone who attempts to make an announcement to the
general public regarding the properties (or anything else for
that matter). The only discretion involved is determining
whether the person has a valid court order or bankruptcy
petition staying or postponing the sale, which is not the type of
determination that carries the “opportunity for abuse” or
creates a subjective, unworkable standard.104 The City’s no
comment policy is therefore “capable of reasoned
application.”105
Porter alleges that Chew inconsistently enforced the
City’s policy, but as we address below, Chew’s purportedly
selective enforcement does not go towards the reasonableness
of the policy itself. Given the City’s “flexibility” to craft
reasonable limitations on speech that reserve the sheriff’s sale
for the intended purpose of conducting a public auction, the
City’s policy meets “this forgiving test.”106
2. Viewpoint Neutrality
Next, we disagree with the District Court’s finding that
the City’s policy prohibiting public comments during the
102
Id. at 1889.
103
Id. at 1888, 1891-92.
104
Mansky, 138 S. Ct. at 1891. In fact, this is not a
discretionary decision at all. If a court has ordered the sale of
the property to be stayed or postponed, the Sheriff’s Office
must comply.
105
Id. at 1892.
106
Id. at 1885, 1888.
22
sheriff’s sale discriminated based on viewpoint.107 The District
Court reached its conclusion based on “testimony that the
organizers of the sheriff’s sale tolerated announcements,
suggesting that Chew’s implementation of the policy was
viewpoint-discriminatory.”108 Chew testified that whether he
allowed an announcement “depends on what [the speaker]
wanted to say” and that he was concerned with announcements
that “have a chilling effect on the sale itself.”109 The District
Court concluded that “Chew thus essentially conceded that the
policy, or at least his application of it, was not content-neutral,
and discriminated on the basis of . . . viewpoint.”110
This District Court’s conclusion fails on two levels.
First, as explained above, Porter cannot establish municipal
liability under Monell absent a policy or custom that violates a
person’s constitutional rights. The City’s policy in this case is
clear and uncontested: no comments are allowed.111 That
107
Porter, 337 F. Supp. 3d at 552-53.
108
Id. at 552 (emphasis added).
109
Ohio App. 500. Chew testified that he did not allow
announcements that may interfere with a sale or decrease the
sale price. According to the City, this is not viewpoint
discriminatory since value-decreasing speech is not a
“viewpoint.” City Br. at 33-34; see also Oral Arg. Transcript
at 7, 12 (arguing that viewpoint discrimination refers to
targeting certain opinions or ideologies, whereas prohibiting
speech that discourages sales is an eminently reasonable
content-based distinction at an auction). Because we find that
the City’s official policy prohibited all announcements,
regardless of content or viewpoint, we need not delve into the
analytical distinction between content and viewpoint
discrimination.
110
Porter, 337 F. Supp. 3d at 553 (emphasis added).
111
The District Court rightly found that “[n]umerous
witnesses for both Porter and [the City] confirmed the
existence of a policy ostensibly forbidding announcements at
sheriff’s sales.” Id. at 552. In discussing the requirements
under Monell, the District Court also found “that the Sheriff’s
Department had a specific ‘policy’ not to allow any
‘announcements’ to be made at Sheriff’s sale” and “the
Defendant Sheriff at trial admitted . . . the existence of a
policy forbidding announcements at Sheriff’s sales.” Id. at
23
prohibition applies to all comments, regardless of the
viewpoint that is expressed. Consequently, there is no apparent
viewpoint discrimination.
Second, the discussion of how Chew implemented or
applied the City’s policy prohibiting announcements conflates
a facial constitutional challenge regarding the City’s policy
with an as-applied constitutional challenge regarding the
enforcement of the policy against Porter.112 As we have
explained, the City’s policy prohibiting comments is
reasonable and viewpoint neutral on its face, prohibiting all
public announcements regardless of the speaker or message.
Any facial challenge to the City’s policy therefore fails. To the
extent we can construe Porter’s challenge as an as-applied
challenge based on the selective enforcement of the City’s
policy, this also fails. 113 While Porter may bring an as-applied
challenge to a facially constitutional policy, such a challenge
remains subject to the constraints of Monell.
In Brown v. City of Pittsburgh, a woman alleged that a
facially valid ordinance creating a protest-free buffer-zone
around abortion clinics was unconstitutional as applied to her
because the Pittsburgh police were selectively enforcing it
against her for expressing her pro-life views.114 In addressing
her Monell claim, we explained that: “to establish municipal
547. The jury was likewise instructed that the City had a
policy forbidding comments. See supra, notes 51 and 52 and
accompanying text.
112
City of Los Angeles v. Patel, 135 S. Ct. 2443, 2451 (2015)
(“Under the most exacting standard the Court has prescribed
for facial challenges, a plaintiff must establish that a law is
unconstitutional in all of its applications.”) (internal citations
omitted); Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 450 (2008) (noting that “[f]acial
challenges are disfavored”).
113
See Thomas v. Chicago Park Dist., 534 U.S. 316, 325
(2002) (explaining that a facially constitutional licensing
scheme could be unconstitutional as-applied if the licensing
agency engaged in a “pattern of unlawful favoritism,” such as
“[g]ranting waivers to favored speakers (or, more precisely,
denying them to disfavored speakers)”).
114
586 F.3d 263, 289 (3d Cir. 2009).
24
liability for selective enforcement of a facially viewpoint-and
content-neutral regulation, a plaintiff whose evidence consists
solely of the incidents of enforcement . . . must establish a
pattern of enforcement activity evincing a governmental policy
or custom of intentional discrimination on the basis of
viewpoint or content.”115 “[O]ne enforcement incident cannot
meet the burden of proof imposed by Monell.”116 We further
clarified that a plaintiff “must prove not merely that the weight
of . . . the Ordinance has tended to fall more heavily on those
who advocate one viewpoint (e.g., a pro-life view) than on
those who advocate another (e.g., a pro-choice view)[,]” but
also that “such enforcement occurred because of the viewpoint
expressed.”117 In other words, a plaintiff must “show an intent
to discriminate on the basis of viewpoint” by those enforcing
the statute.118 The plaintiff in Brown failed to establish any
such “pattern of unlawful favoritism” based on the two times
that the police enforced the ordinance against her.119
Neither has Porter proved a pattern of unlawful
viewpoint discrimination. Even assuming arguendo that the
Sheriff’s Office targeted Porter because of his viewpoint or his
previous interactions with the Office on this one occasion,
according to Brown the City is only liable where it evinces a
pattern of intentional viewpoint discrimination. Porter falls
short of this exacting standard.120 The limited and vague
testimony regarding instances where the Sheriff’s Office
permitted announcements is insufficient evidence to
demonstrate a long-standing practice or custom of intentionally
discriminating based on viewpoint.121 Unlike the plaintiff in
115
Id. at 294.
116
Id. at 296.
117
Id. at 293 (emphasis in the original).
118
Id.
119
Id. at 294-95 (internal quotation marks and citation
omitted).
120
As the District Court correctly notes, “[t]he requirements
of a Monell claim . . . are very demanding.” Porter, 337 F.
Supp. 3d at 546.
121
Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 737 (1989)
(explaining that a municipality is liable for “acquiescence in a
longstanding practice or custom which constitutes the
standard operating procedure of the local governmental
25
Brown, who could identify a particular political or ideological
viewpoint she claimed the city was targeting (pro-life
protestors), Porter does not explain what viewpoint the
Sheriff’s Office was favoring or disfavoring on a consistent
basis. Nor does he demonstrate that the supposed inconsistency
in the policy’s enforcement was backed by an intent to promote
or suppress any particular views.122
As we have explained, only Porter’s claim of municipal
liability under Monell is before us. Because the City is not
strictly liable for the actions of its individual employees, we
need not decide whether Chew violated Porter’s constitutional
rights by targeting Porter because of his message.123 We do not,
of course, condone the manner in which Chew attempted to
enforce the City’s policy.124 Nevertheless, the City cannot be
entity”) (quotation omitted); see also Bd. of Cty. Comm’rs of
Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997) (“[A]n
act performed pursuant to a ‘custom’ that has not been
formally approved by an appropriate decisionmaker may
fairly subject a municipality to liability on the theory that the
relevant practice is so widespread as to have the force of
law.”); Baloga, 927 F.3d at 761 (explaining that municipal
liability stems only from “a custom . . . though not authorized
by law, [that] was so permanent and well settled as to
virtually constitute law”) (internal quotations and citations
omitted).
122
Brown, 586 F.3d at 293-94 (explaining that a
disproportionate effect on speakers of a certain viewpoint,
because “advocates of a particular viewpoint happen to
engage in certain proscribed conduct more than those who
espouse other views,” does not violate the First Amendment
unless the plaintiff proves a discriminatory intent).
123
As aforementioned, the jury found that Chew retaliated
against Porter for exercising his First Amendment right to
free speech, but also found that Chew did not cause Porter’s
injuries. App. 6-7. Porter did not appeal that decision. We
therefore consider only the claim against the City in this
appeal.
124
Because the claim against Chew is not before us, we take
no position on whether Chew intended for the deputies to use
excessive force against Porter, but merely refer to the District
Court’s conclusion that it was Chew who requested the
26
held liable under Monell based upon Chew’s actions without
more than appears in this record.
“[T]he First Amendment simply does not require that
all members of the public be permitted to voice objections . . .
any time they desire to do so.”125 The City has entrusted the
Sheriff’s Office with establishing a process to facilitate valid
foreclosure judgments against property owners. In turn, the
Sheriff’s Office has elected to sell properties with defaulted
mortgages by auction at the sheriff’s sale. Efficiently disposing
of hundreds of properties via live auction would be
ineffective—if not impossible—absent rules limiting the order
and manner of speaking. Allowing public announcements by
every attendee, involving every lot, would be inherently
disruptive to an orderly auction. The City’s policy prohibiting
public announcements during the sheriff’s sale is a reasonable,
viewpoint neutral restriction on speech designed to promote
the efficient sale of hundreds of foreclosed properties in a
single auction. Porter’s right to free speech does not encompass
the right to disrupt the auction or hinder the intended purpose
for which the government has reserved the nonpublic forum.126
Because we find that Porter fails to state a claim under the First
Amendment as a matter of law and therefore reverse the
District Court’s denial of the City’s motion for judgment as a
deputies to stop Porter from speaking. Porter, 337 F. Supp.
3d at 553 (“Chew apparently asked for such a response.”).
125
Galena, 638 F.3d at 212.
126
See Mansky, 138 S. Ct. at 1885 (“The government may
reserve such a forum ‘for its intended purposes,
communicative or otherwise, as long as the regulation on
speech is reasonable and not an effort to suppress expression
merely because public officials oppose the speaker’s view.’”)
(quoting Perry, 460 U.S. at 46); Startzell v. City of Phila., 533
F.3d 183, 198 (3d Cir. 2008) (“The right of free speech does
not encompass the right to cause disruption.”); see also
Eichenlaub, 385 F.3d at 281 (ejecting a citizen from city
council meeting for disruptive, off-topic speech is not a First
Amendment violation because allowing “a speaker to try to
hijack the proceedings, or to filibuster them, would impinge
on the First Amendment rights of other would-be
participants.”).
27
matter of law, we need not reach the issue of the City’s motion
for new trial.
V. CONCLUSION
Because there is an insufficient basis for a reasonable
jury to find that the City of Philadelphia’s policy violated the
First Amendment, we will reverse the District Court’s denial
of the City’s motion for judgment as a matter of law and
dismiss the First Amendment claim against the City.127
127
Judge Porter concurs in the judgment.
28