Montgomery Co. police officer appeals denial of immunity in Legal Aid free speech lawsuit

A Montgomery County police officer facing a civil suit for issuing a no-trespass order to Legal Aid employees who attempted to visit migrant farmworkers at a local farm is appealing a federal judge’s denial of qualified immunity protection.

The county and officer also asked Friday for proceedings to be stayed until the appeal is resolved.

The lawsuit was filed last year by Nohora Rivero, a Legal Aid law graduate who attempted to visit employees of Lewis Orchards in Dickerson with a summer law clerk on Aug. 18, 2015 to inform the workers about their rights and refer them to legal and other social service providers.

Rivero alleges in the lawsuit the farm’s owners confronted them, ordered them to leave and called the county police, according to U.S. District Judge Paul W. Grimm’s memorandum opinion on the motion to dismiss, issued May 3. Officer Alexander Kettering responded and issued no-trespass warnings to the Legal Aid employees, barring them from returning to the property for one year.

The lawsuit, filed in U.S. District Court in Greenbelt in April 2016, also names the county and farm owners as defendants and alleges violations of state and federal constitutional rights.

A 1982 Maryland attorney general opinion states that outreach workers — including attorneys — may visit migrant farmworkers, even on privately owned land, according to the suit. Legal Aid workers carry a copy of the opinion if challenged by employers. But at the Lewis property, Rivero mistakenly provided a copy of a Virginia opinion, which the officer determined had no legal force, and he refused to read a copy of the Maryland opinion on a smartphone, according to Grimm’s opinion.

Because Kettering’s dilemma was “clearly resolved” by Maryland law, qualified immunity does not apply to the plaintiffs’ allegation that he violated their rights, Grimm ruled.

First Amendment claims

After the lawsuit was filed, Montgomery County Police Department Commander David Anderson rescinded the trespass notifications, according to court documents. The defendants moved to dismiss in November because the rescission mooted the plaintiffs’ claims and because the plaintiffs failed to state a claim.

Grimm found that the rescission and a police training bulletin affirming Legal Aid’s right to conduct outreach does not moot the issues because “what the Police Department gives, it may take away.” The bulletin also fails to recognize a First Amendment right for the plaintiffs to conduct outreach and the defendants’ briefs to the court indicate they do not believe that right exists, he wrote.

“Based on the ephemeral nature of the Training Bulletin and the County’s apparent position that the right to conduct outreach to migrant farmworkers lacks grounding in the First Amendment, I cannot say that the Defendants have carried their ‘formidable burden’ to demonstrate that the allegedly wrongful conduct cannot ‘reasonably be expected to recur,’” Grimm wrote.

Grimm also found some of the county’s arguments on the subject “just plain silly,” accusing the government of unpersuasively attempting to distinguish their situation from case law.

The Lewises, who remain defendants in the case, and the county also argued as in appropriate a declaratory judgment that Legal Aid’s activities were constitutionally protected, according to Grimm’s opinion, with the Lewises claiming they are not state actors and cannot have violated the plaintiffs’ First Amendment rights.

Grimm analyzed exceptions to the rule that private actors cannot infringe on others’ constitutional rights and determined a private entity’s “invocation of trespass law might sufficiently chill First Amendment rights” to such an extent that it could be recognized as state action.

“Although residential walkways and doorstoops are private property, First Amendment case law treats them as quasi-public vestibules leading to the public square,” Grimm wrote. “They are the capillaries in a larger vascular system through which speech flows; without them, public discourse would be starved of oxygen.”

Though the farm owners’ property rights cannot be ignored, there is a risk to farmworkers’ rights when the owners can isolate occupants of residential housing on their property from protected activity, Grimm added.

“A farm owner should not be able to wield his property rights through trespass law to completely suppress the exchange of ideas and information that might benefit the workers he houses and, potentially, the public as a whole,” he concluded.

Rivero and Legal Aid are represented by Kit A. Pierson and Robert W. Cobbs of Cohen, Mulstein, Sellers and Toll PLLC in Washington as well as the ACLU of Maryland.

The case is Nohora Rivero and Legal Aid Bureau Inc. v. Montgomery County et al., 8:16-cv-01186-RWT.