Barich v. City of Cotati et al

Filing 42

NOTICE THAT THE COURT IS CONSIDERING SUA SPONTE SUMMARY JUDGMENT (msl, COURT STAFF) (Filed on 10/9/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GEORGE EDWARD BARICH,

Case No. 15-cv-00350-VC

Plaintiff,
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v.
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CITY OF COTATI, et al.,

NOTICE THAT THE COURT IS
CONSIDERING SUA SPONTE
SUMMARY JUDGMENT

Defendants.

United States District Court
Northern District of California

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Defendants are hereby given notice that the Court is considering whether to enter sua

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sponte summary judgment in Barich's favor on his claim that Chief Parish violated his First

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Amendment rights by threatening to arrest him for calling the planning commissioner a "liar" after

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the city council meeting. See Fed. R. Civ. P. 56(f); Albino v. Baca, 747 F.3d 1162, 1176 (9th Cir.

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2014).

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It appears undisputed that Chief Parish threatened Barich merely for engaging in "heated,"

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"emotion[al]," "aggressive" criticism of a public official. According to Chief Parish's own

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deposition testimony, Chief Parish told Barich, "You can't call [the planning commissioner] a liar

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in a heated emotion rant like you did," because doing so would be a crime under California Penal

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Code § 415(3). Chief Parish's own declaration, likewise, states that Chief Parish "informed

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[Barich] that if he called a private citizen [sic] a liar in a heated, aggressive, and emotional rant

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like he did and when he did, he could be found to have breached the peace in violation of Penal

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Code § 415(3)." This seems like an obvious violation of Barich's First Amendment rights.

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Because Barich's verbal exchange with the planning commissioner occurred after the city council

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meeting was over, cases concerning a city's authority to manage its governmental meetings are not

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relevant. Cf. Norse v. City of Santa Cruz, 629 F.3d 966, 975 (9th Cir. 2010) (en banc); Kindt v.

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Santa Monica Rental Control Bd., 67 F.3d 266, 270-71 (9th Cir. 1995); White v. City of Norwalk,

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900 F.2d 1421, 1425 (9th Cir. 1990). Accordingly, the only way Barich's criticism of the planning

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commissioner would not be protected by the First Amendment is if that criticism constituted

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"fighting words" – "that there existed a likelihood that the person addressed would make an

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immediate violent response." United States v. Poocha, 259 F.3d 1077, 1080-81 (9th Cir. 2001).

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"In light of our profound national commitment to the principle that debate on public issues shall be

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uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes

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unpleasantly sharp attacks on government and public officials, the area of speech unprotected as

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fighting words is at its narrowest, if indeed it exists at all, with respect to criminal prosecution for

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speech directed at public officials." Id. at 1081. The mere fact that speech is "heated,"
"emotional," or "aggressive" is not enough to deprive that speech of First Amendment protection –

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United States District Court
Northern District of California

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particularly when the speech in question is criticism of a public official.

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The defendants are hereby given an opportunity to present further argument, and to

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identify any other relevant evidence, having now been put on notice that they are in danger of a

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summary judgment ruling against them. The defendants may present this evidence and argument

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in the same supplemental filing that the Court previously requested on October 8, 2015 (Dkt. No.

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41). The deadline to submit this supplemental filing is extended from Tuesday, October 13 to

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Wednesday, October 14, at 5 p.m.

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IT IS SO ORDERED.
Dated: October 9, 2015
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VINCE CHHABRIA
United States District Judge

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