Response in Opposition ...

Case 1:12-cv-01137-MCA-SCY Document 139 Filed 11/12/14 Page 1 of 58
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO
CHARLES CHED MACQUIGG,
)
)
Plaintiff,
)
)
v.
) No. 1:12-CV-01137-MCA-KBM
)
The ALBUQUERQUE PUBLIC
)
SCHOOLS BOARD OF EDUCATION,
)
MARTIN ESQUIVEL, in his individual
)
capacity, DAVID ROBBINS, in his
)
individual capacity, WINSTON
)
BROOKS, in his individual capacity,
)
STEVE TELLEZ, in his individual
)
capacity, MONICA ARMENTA, in her
)
individual capacity, RIGO CHAVEZ,
)
Records Custodian.
)
)
Defendants.
)
____________________________________)
PLAINTIFFS RESPONSE IN OPPOSITION TO CERTAIN DEFENDANTS

MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION.
The Courts Sua Sponte Order. When the Court entered the preliminary injunction
permitting the Plaintiff to resume attending APS Board meetings, it ruled that the Defendants
had been engaged in unlawful viewpoint discrimination and that Plaintiff had not been
disruptive. Doc. 114, Order Granting Prelim. Inj., pp. 10-13. In its sua sponte Order of
September 29, 2014 (Doc. 132), this Court directed the Defendants to re-state their motion for
summary judgment in such a way that the Court could understand, as to a given event, which
Defendants had personally participated in each of the alleged violations. If a Defendant did
not personally participate in the particular violation, that Defendant would likely be entitled to
summary judgment on that basis. Id. at 1, 6, 9. In addition, the Court directed the Defendants
to explain, as to each Defendant, why that Defendant might be entitled to qualified immunity.
In their Re-Briefing of their motion for summary judgment, Certain Defendants
(Defendants) argue that they are entitled to summary judgment on all of Plaintiffs claims
either because they did not personally participate in the violations of Plaintiffs constitutional
rights or, if they did personally participate in those violations, they are entitled to qualified
immunity. In their statement of undisputed facts, the Defendants also implicitly ask the Court to
revisit its determination that it was Plaintiffs disruptiveness, and not the content of his speech
or his viewpoint, that caused the Defendants to silence and expel him. See, Doc. 135, Defs
Undisputed Facts Nos. 9, 14-17, 26-28, 30, 31, 33, 36, 40.
The parties stipulation as to personal participation. As to the issue of personal
participation by the various Defendants in the four events giving rise to Plaintiffs claims,1
Plaintiff and the Defendants have agreed to stipulate for purposes of this litigation which
Defendants were participants in the events giving rise to Plaintiffs claims.2 As to individual
participation in the events, the only remaining difference between the parties relates to Defendant
Winston Brookss involvement in the September 1, 2010 Banning Order. See Stipulation of the
Parties, filed on November 10, 2014. (Doc. 137, Ex. 29). This stipulation will obviate the
necessity of the Plaintiff or the Court addressed most of the assertions in Defendants brief that,
1
The four events are: (1) the November 4, 2009 expulsion from the regular Board meeting; (2) the August
19, 2010 exclusion from the meeting of the Boards District Relations Committee during which a
gubernatorial debate was held; (3) the expulsion from the Audit Committee meeting of August 25, 2010;
and (4) the Banning Order of September 1, 2010 (Ex. 24).
2
With the exception of the participation in the Banning Order by Defendant Brooks, Plaintiffs First
Amended Complaint (Doc. 22) identified each Defendant who participated in the four events that give
rise to Plaintiffs claims.
as to particular Defendants, there is insufficient evidence of personal involvement in one or

another of the particular events.3
Qualified immunity. As to the second issue qualified immunity to the extent that the
Defendants amended motion relies on the doctrine, the Court should deny it because, first, the
law on which Plaintiff relies to establish the constitutional violations was clearly established
when the Defendants expelled Plaintiff from public meetings, barred him from attending the
committee meeting that included the gubernatorial debate and banned him from future APS
Board meetings. Second, this Court has already concluded that the Defendants violated
Plaintiffs First and Fourteenth Amendment rights. Doc. 114, Order Granting Prelim. Inj., pp.
10-13. Third, there is no legal basis for Defendants Esquivel, Tellez or Brooks to claim advice
of counsel as a basis for invoking qualified immunity as a defense to the claim arising from the
order indefinitely banning the Plaintiff from future Board meetings. Finally, Defendant
Robbinss expulsion of Plaintiff from the Audit Committee meeting of August, 2010, violated
clearly established law related to the Plaintiffs right to attend public meetings, regardless of
whether Defendant Robbins was or was not mistaken about Plaintiffs role in the supposed
disruption related to another persons failure to turn off his recording devise as the public
meeting was ending.
In summary: Some Defendants may not have sufficiently personally participated in
certain of the events, and are entitled to the benefit of the parties stipulation, which makes their
non-participation clear. No further action by the Court is necessary with respect to the personal
participation issue except as to Defendant Brooks participation in the Banning Order. In all
3
The parties stipulation, with the exception of the issue of Defendant Brookss involvement in the
Banning Order, reflects the allegations of Paragraph 7 of Plaintiffs First Amended Complaint (Doc. 22).
other respects, the Court should deny Defendants Motion for Summary Judgment for the
reasons set forth above and below.
Defendants list of undisputed facts. As to Defendants statement of 48 undisputed
facts, most serve no purpose except to support Defendants continuing claim that it is
undisputed that their motive in excluding the Plaintiff from their public meetings was not the
content of Plaintiffs speech but his supposed disruption of meetings and his supposed
threatening or irrational behavior at meetings. [Doc. 135, Def. Br., pp. 2-9.]4 The Defendants,
however, must be aware by now that continuing to claim that they kicked Plaintiff out of three
meetings and banned him from future meetings because of his disruptiveness can hardly be
characterized as an uncontested fact. It is not just contrary to the record, which contains a
mountain of evidence to the contrary, but is in the teeth of this Courts opinion and order
granting a preliminary injunction, in which it ruled that the evidence established that the
Defendants did not ban the Plaintiff for the reasons they now claim, but did so because they did
not want to hear his criticisms anymore, thereby violating the Plaintiffs rights under the First
and Fourteenth Amendments. See Doc. 114, Order Granting Prelim. Inj., pp. 10-13. Yet
Defendants continue to argue that it is undisputed that [o]ver the past nine years, Plaintiffs
disruptive conduct has led APS officials to eject Plaintiff from APS meetings on several
occasions Doc. 135, Defs Undisputed Fact No. 14). This Court explicitly found that the
evidence established that this assertion is not just contested, it is false. Doc. 114, Order Granting
Prelim. Inj., pp. 10-13.5
4
In this category are the following undisputed material facts, most of which the Defendants certainly
know by now are disputed by record evidence: 14, 15, 17, 18, 19, 20, 23, 26, 27, 28, 30, 31, 32, 34, 36,
40, 41, 42, 43, 44, and 47.
5
The Court finds that it was what Plaintiff said rather than any non-verbal conduct that offended the
Board and led to his expulsion. Doc. 114, Order Granting Prelim. Inj., p. 10.
The Defendants, of course, may be free to continue to try to prove at a trial on the merits,
if the Court were to determine that one were warranted, that their motivation for banning the
Plaintiff stemmed from his supposedly disruptive conduct (if, also, the Court were to determine
that such evidence were even relevant and admissible in light of the videos and other undisputed
evidence). But for the Defendants to continue to argue that it is undisputed that the Defendants
motives were unrelated to Plaintiffs speech, and to continue to put Plaintiff in the position of
having to comb the record for the documents and testimony to rebut Defendants latest shopping
list of undisputed facts related to Defendants motives is an abuse of the summary judgment
procedure and a colossal waste of Plaintiffs and the Courts time.6
At the risk of plaguing the Court with more than it would like to hear about the
supposedly undisputed issue of Plaintiffs supposedly disruptive conduct, Plaintiff respectfully
requests the Court to consider the following testimony of Brad Winter, who is now acting
Plaintiff does not seek sanctions for having to unnecessarily re-brief and re-dispute Defendants list of
undisputed facts that the Defendants know perfectly well are disputed. Federal courts have repeatedly
expressed exasperation, however, at the practice of filing motions for summary judgment when material
facts are obviously disputed. One federal court reminded the parties of Rule 11 and cautioned them
against moving for summary judgment based upon obviously disputed facts. McNabb v. Placid Oil Co.
1995 WL 258283, 4 (E.D.La.1995) (emphasis in original). See also, Brager & Co., Inc. v. Leumi
Securities Corp., 84 F.R.D. 220, 222 (D.C.N.Y. 1979) (As to plaintiff's motion for partial summary
judgment upon its claims of antitrust violation, these are so obviously riddled with sharply disputed fact
issues that not only is the motion, as the Magistrate reported, devoid of merit, but one must question
whether it was made with any serious purpose or prospect of success.). Another Court criticized
summary judgment motions that turn the motion into a massive paper trial that only adds delay and
expense because material facts are plainly in dispute. Ford v. Lumbermens Mut. Cas. Co., 197 F.R.D.
365, 367 (N.D. Ill. 2000). Moreover, many, if not most of Defendants allegedly undisputed facts are not
material facts for purposes of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
48 (1986) (for purposes of summary judgment, [a] material fact is one which may affect the outcome of
the suit under the governing law. Factual disputes regarding matters that are irrelevant or unnecessary
are not germane in the summary judgment context). Here, for example, why is it a material fact that
plaintiff attends APS meetings to gather information for his blog and to express his views about APS?
Doc. 135, Defs Undisputed Fact No. 11. Why is it material that the gubernatorial debate was broadcast
on various media outlets? Id., No. 21. In what way can these supposedly undisputed material facts affect
the outcome of this litigation? The same holds true for Defs Undisputed Facts Nos. 1, 2, 3, 4, 6, 7, 10,
12,13,24, 25 and others.
Superintendant of APS and who was at the time Chief Operating Officer of APS, who had
attended most Board meetings during the six years before his deposition. Ex. 7, Winter Dep., at
3: 12-16, 5: 11-13. He testified about the nature of Plaintiffs so-called disruptive behavior
and his testimony fully supports this Courts analysis:
Q. I think you testified that the first time Mr. MacQuigg came onto your radar was
with the elephant mask; is that correct?
A. Yes
Q. And nothing before that ever came to your attention as something that Mr.
MacQuigg had done that was disruptive, had it?
A. No. The only thing I remember is he would be there for public comment.
Q. And did he do anything disruptive during public comment that you can recall?
A. Just not just disrespectful comments. Like going over his time a couple of
times, but thats all I remember.
Q. When you say disrespectful comments what do you mean by that?
A. Rude comments about different things, and asking questions, just that kind of
stuff.
Q. Do you remember what rude comments he made?
A. The only thing I remember is some of the stuff about Character Counts - - bringing
up Character Counts issues.
Q. And those were rude comments?
A. Just the rude part was asking just asking questions. Thats it.
Q. Would you explain for the record, please, what is rude about asking questions?
A. Basically.
Q. So the court reporter can get it down, what is rude about asking questions regarding
Character Counts?
A. It is not rude, but usually during public comment you can ask questions, but you
dont expect an answer. Public comment is to give comment. It is not to ask questions of
board members or councilors.
Q. So you can ask questions but you shouldnt expect a response?
A. Yes, sir.
.
Q. Can you give me other than what you characterize as the disruption of the
elephant mask by Mr. MacQuigg, can you give me any other examples in which he was
disruptive of a school board meeting?
A. yes.
Q. Please do so.
A. I was present at the internal audit meeting.
Q. Im sorry to interrupt you. Im going to get to that in a minute, but I want to start
with the school board itself?
A. Are you referring to the school board meetings?
Q. Yes, I am.
A. Not that I can recall.
6
Q. Do you attend most meetings?

A. Yes, sir.
Ex. 7, Winter Dep., 10-12, passim; 15: 25 16: 20. Mr. Winters testimony, as the Court is
aware, comports fully with the videos of the Boards meetings. It is a continuing mystery how
the Defendants can assert that Plaintiff was disruptive, much less tell the Court that it is
undisputed that they expelled the Plaintiff from meetings and banned him indefinitely for
disruptive behavior.7
Moreover, Defendant Esquivel himself, the author of the September 1, 2010 Banning
Order and who, as Chair, expelled Plaintiff from the November 4, 2009 meeting, made the
following admission in his responses to Plaintiffs earlier Statement of Undisputed Material
Facts: After admitting that he stopped Plaintiff from speaking at the November 4, 2010 Board
meeting and expelled him, Defendant Esquivel stated: Defendant disputes Plaintiffs
oversimplification of the reasons he was removed, which included violation of the Boards
policy on discussion of personnel issues, but also included violation of the Boards policy on
personal attacks and the disruption that those violations created in the meeting. Ex. 25
[Esquivels November, 2013 response to Plaintiffs Statement of Undisputed Material Facts,
12.] In the same document, Defendant Esquivel admitted that the content of Plaintiffs
comments can be considered matters of public concern, but disputes the idea that Plaintiffs
personal attacks on Board members and APS employees should be considered matters of public
concern. Id., at 9. In other words, the Defendants admit that the disruption Plaintiff caused
was the exercise of what this Court has found to be his First Amendment rights, by uttering
7
See alsoMr. Art Melendres testimony about the behavior the Board considered disruptive. Ex. 10.
protected speech during public comment.8 On what possible basis do Defendants continue to
argue that it is undisputed that Plaintiff was disruptive and was kicked out and banned for that
reason, and require the Plaintiff, once again, to marshal evidence to dispute this claim?9 The fact
that they are doing it again, after this Court has considered the evidence and determined
otherwise, is insupportable.
II.
RESPONSE TO DEFENDANTS STATEMENT OF UNDISPUTED

MATERIAL FACTS.
For reasons set forth in the introduction, neither Plaintiff nor the Court should be required
to labor, again, through a list of supposedly undisputed facts that Defendants well know are
disputed, particularly the many undisputed facts that relate to their motives and Plaintiffs
supposedly disruptive conduct. This Court has already ruled that the Defendants barred the
Plaintiff from their meetings because of his speech and that Plaintiff was not disruptive.
Nevertheless, under Fed. R. Civ. P.56(e)(2), if the plaintiff does not respond to any of
defendants undisputed facts, plaintiff faces the prospect of having them deemed undisputed.
Accordingly, Plaintiff responds as follows to Defendants list of undisputed facts.
8
That the Defendants are simply playing hide and seek with these key facts regarding their unlawful
policies is revealed vividly by the colloquy leading up to Plaintiffs expulsion from the November 4
meeting (set forth verbatim at Paragraph 49 of the Verified Complaint, Doc. 22), showing that Plaintiff
was expelled for addressing board members, addressing us individually and then cross[ing] the line
by mentioning the name of an administrative employee in attendance. Weve told you not to address
personnel issues.You can leaveYou are done. You are done. Youre doneGoodbye. Id. In
Certain Defendants Response In Opposition to Plaintiffs Motion for Partial Summary Judgment
Relating to Plaintiffs Federal Claims, at pp. 3-4 (Ex. 26), however, the Defendants recast their policy.
The policy against personal attacks does not restrict speakers from speaking critically about APS Board
members or employees.The policy merely prohibits personal attacks which are disruptive and run
the risk of creating disorder at APS Board meetings. (Emphasis added.) This, taken together with the
transcript of the November meeting, show that their policy is this: You can criticize individual Board
members and employees so long as your statements do not anger us.
9
SeeReply in Support of Motion for Preliminary Injunction, Doc. 70, Statement of Undisputed Material
Facts in Support of Motion for Partial Summary Judgment, Doc. 83, Response to Defendants statement
of undisputed material facts, Docs. 94 and 95, and this Response.
1.
Plaintiff is a former APS teacher who twice sued APS relating to issues arising
out of his employment. Undisputed/Irrelevant.

2.
After Plaintiff ceased working for APS in 2004, he began attending APS
meetings, including APS Board meetings. Undisputed.

3.
APS holds Board meetings bi-weekly, and those meetings are generally held in
the Boardroom at APS's main office located at 6400 Uptown Blvd. Undisputed/Immaterial.
4.
APS's Board meetings usually contain a 30-minute period for public comment
during which speakers are permitted two minutes to express their views to the APS Board.
Partially admitted. At present, the two-minute time allotment only applies if fewer than 15
speakers have signed up to speak. If 15 or more speakers have asked to address the Board, each
is permitted only one minute in which to speak. Comments are limited to either 2 minutes or 1
minute, depending on the number of speakers who sign up to speak. http://www.aps.edu/aboutus/board/about-board-meetings (last accessed 10/30/14)
5.
Plaintiff has often spoken during the public comment period of APS Board
meetings. Undisputed.
6.
Plaintiff's primary interest in attending APS Board meetings appears to arise out
of his desire for the APS Board to follow the tenets of a program called "Character Counts."
Disputed. While Plaintiffs advocacy for the tenets of Character Counts! is undeniable, there are
numerous other reasons Plaintiff has stated for attending APS Board meetings, including
gathering information related to the Boards budgeting and financial decisions, keeping abreast
of personnel and law enforcement issues, and providing input about the administration of the
APS whistleblower program. See Am. Verified Compl. [Doc22] at 33, 38.
7.
Plaintiff professes to be a devotee of Character Counts - having referred to
Character Counts as his "religion" and having testified that the program amounts to "a hill worth
dying on." Ex. A, at 139:1-140:25. Partially Disputed/Immaterial. Plaintiff did not describe
Character Counts! as his religion. Rather, he used the term religion in the context of
describing why he believes the Character Counts! program is beneficial to students at APS. At
his deposition, Plaintiff summarized his views about the Character Counts! program and
included the words attributed to him, which are taken out of context. His statement regarding
Character Counts! in context, is attached as Exhibit A at 139:1-140:25. Plaintiff has no idea why
Defendants would include this as an undisputed material fact entitling them to summary
judgment. Rather, it appears to be an effort by Defendants to continue to characterize Plaintiff as
obsessive about the Character Counts! program and somehow dangerous for that reason.
8.
Since 2004, Plaintiff has spoken to the APS Board regarding Character Counts at
50 to 100 different meetings. Ex. A, at 80:15-23. Undisputed/Immaterial/Misleading. As the

videotapes of the relevant meetings show, Mr. MacQuigg mentioned Character Counts! at
several public meetings, but his topics varied from meeting to meeting. For instance, Mr.
MacQuigg used Character Counts! as a vehicle to discuss the Boards extravagant spending at its
headquarters, misconduct by APS police officers, and the failure to conduct a transparent audit.
See Ex 13, Lodging of Exhibits, Disk A, showing Plaintiffs presentations during Public Forum,
as APS 001, APS 002. As Plaintiff explained in his affidavit, he carefully crafted his comments
to comply with the Boards rules of decorum. Ex. 11, MacQuigg Affidavit of 09/23/13.
9.
Plaintiff has testified that he intends to repeat his views to the APS Board until he
gets a response; he has undertaken additional efforts to "up[ ] the ante" and to "do[] something
that they couldn't reasonably ignore." Ex. A, at 77:1, 11-15. Disputed/Misleading. Defendants
mischaracterize Plaintiffs testimony. In the deposition testimony Defendants reference,
10
Plaintiff testified that he went to the Albuquerque Journal to encourage them to report about the
Boards refusal to stand as role models for APS students. When the Albuquerque Journal did not
write an article about the issue, Plaintiff testified that he made an effort to up the ante by
donning an elephant mask at an APS Board meeting. He thought this was an act of speech the
media could not reasonably ignore. See Plaintiffs complete answer to Defendants questions
concerning why he wore the elephant mask at Ex. 1, MacQuigg Dep., at 76:21 77:24.
10.
In addition to regular Board meetings held at 6400 Uptown Blvd., APS routinely
holds public meetings at various locations throughout the school district. Since 2004, Plaintiff
has attended many of these APS meetings as well. Ex. A, at 17:23-18:10.
Disputed/Immaterial/Misleading. Defendants have not offered any evidence for their assertion
that APS routinely holds public meetings of the APS Board at locations other than 6400 Uptown
(APS headquarters). By APS policy and practice, the Boards public meetings are open to the
public and at regular meetings, include time for public participation. Ex. 17, from APS Board
website, at http://www.aps.edu/about-us/board/about-board-meetings (last accessed 11/05/14).
In the deposition testimony referenced by Defendants, Plaintiff testified that most public
meetings are held at 6400 Uptown (the APS headquarters). He specifically recalled one
exceptionthe District Relations Committee meeting that was held in conjunction with a
gubernatorial debate at Eldorado High School in 2010. Plaintiff had a vague recollection that
some of the Boards committee meetings were occasionally held at locations other than 6400
Uptown. Ex 1, MacQuigg deposition at 17:16-18:10. Defendants statement is misleading
because the meetings they claim were not at 6400 Uptown were not regular Board or committee
meetings within the meaning of Board policy. They were community meetings set up by APS to
discuss policy issues affecting APS. These meetings are not subject to the Boards open meeting
11
and public participation policy and at which Plaintiff could speak. It is true that Plaintiff was able
to attend these community meetings after the issuance of the Banning Order. But Plaintiff was
not allowed to attend any public meetings of the APS Board after the issuance of the Banning
Order. See [Doc. 22-1] Banning letter of 09/01/10; Ex. 4, Tellez Dep., 67:14-16,68:15-18,
72:13-19; Ex. 3, Esquivel Dep., 251:7-11, 253:6-254:22; Ex 2, Brooks Dep., 130:11-25, 137:1221.
11.
Plaintiff claims he attends APS meetings to gather information for his blog and to
express his views about APS. Ex. A, at 6:2-7: 10. Partially Disputed. Plaintiff has stated that
these are his primary reasons for attending APS Board meetings. There are, however, other
issues of interest to him. Plaintiff testified, for example, that he attended any meeting that had to
do with community input on goals, bullying, or issues of standards and accountability. See Ex.1,
MacQuigg Dep., 5:16 - 6:1; also, Am. Ver. Compl. [Doc22] at 33, 38.
12.
Plaintiff speaks publicly to other groups regarding his views of APS whenever he
gets the chance (Ex. A, at p. 128:3-5; Ex. B, PI's Ans. to APS's lnts., at No.3); Plaintiff has
written opinion pieces to various newspapers about APS (Ex. A, at p. 125:13-24; Ex. B, at No.3);
Plaintiff frequently emails to APS Board members and officials regularly express his views (Ex.
C, Affidavit of Rigo Chavez); and Plaintiff has run unsuccessfully for the APS Board on two
occasions. Ex. A, at 27:23-28:3. Admitted/Irrelevant. Defendants are implying that Plaintiff has
other channels of communication to express his views other than at APS Board meetings.
Defendants have testified that they ignore him and do not read his blog. See Ex. 2, Brooks Dep.,
pp. 20-21; Ex. 6, Robbins Dep., pp. 55-57; Ex.3, Esquivel Dep., p. 29; Ex.8, Yager Dep., p. 108;
Ex.1, MacQuigg Dep., at pp. 109, 114-115. But even if this were undisputed, the same could be
said of any other member of the public. Furthermore, what does Plaintiffs other forms of
12
expression have to do with the issues in this case, other than to establish, once again, that the
Defendants simply wish this Court to give them permission to exclude Plaintiff from their
meetings because they do not want to hear what he has to say?
13.
Initially [Plaintiff] attended and spoke at the [APS] Board's public meetings. He
attended regularly and spoke when able, but he soon found that the public meetings provided a
limited forum for the expression of his views on topics he found important. He accordingly
turned to the internet. Pl's Motion for Preliminary Injunction [Doc. No. 24], at p. 4.
Undisputed/Immaterial.
14.
Over the past nine years, Plaintiff's disruptive conduct has led APS officials to
eject Plaintiff from APS meetings on several occasions, most often from APS Board meetings at
6400 Uptown Blvd. Ex. B, at No. 1. Disputed. The support Defendants cite for this assertion is
Plaintiffs Answer to Interrogatory No. 1 in which Plaintiff lists the meetings from which he was
ejected or prohibited from attending, and the reasons for the exclusions. See Ex. 14, [Answer to
Interrogatory No. 1]. The relevant meetings are as follows:
On December 6, 2006, Plaintiff was ejected from a regular Board meeting for speaking
about issues of accountability.
On December 21, 2006, Plaintiff was ejected from a regular Board meeting for speaking
about issues of accountability.
On January 4, 2007, Plaintiff was ejected from a regular Board meeting for protesting the
removal of the public forum from the public record.
On January 17, 2007, Plaintiff was ejected from a regular Board meeting for protesting
the removal of the public forum from the public record.
On February 20, 2008, Plaintiff was ejected from a regular Board meeting for wearing an
elephant mask at the back of the Board room.
On December 19, 2008, Plaintiff was barred from APS headquarters for making a request
for public records.
On May 18, 2009, Plaintiff was ejected from an APS press conference.
On November 4, 2009, was ejected from a regular Board meeting for discussing
personnel issues and using individuals names during his speech.
On August 19, 2010, Plaintiff was barred from attending a District and Community
Relations Committee meeting (held in conjunction with a gubernatorial debate) because
13
he did not have a valid entry ticket and because Defendants assumed he would be
disruptive.
On August 25, 2010, Plaintiff was ejected from an Audit Committee meeting for
allegedly recording the meeting (which was not true as Plaintiff was not recording the
meeting) and acting in a disruptive way (which is also not true).
Plaintiff was barred from attending all regular and committee meetings of the APS Board
after issuance of the Banning Order on September 1, 2010. Id.
Defendants have not offered any evidence to suggest that any of the ejections or bans were
lawful, or that Plaintiff was disruptive or threatening at any of these meetings. The record
contains video of several of Plaintiffs statements to the Board, all of which demonstrate that
Plaintiff has never done or said anything during the public meetings of the Board (or anywhere
else for that matter) that could be construed as threatening, disruptive, or inappropriate in any
way. Ex. 13, Lodging of Exhibits, DVD Disk A, at APS 001, APS 002, APS005.; Ex 7, Winter
Dep. pp. 10 -12, 15-16; Ex. 11, MacQuigg Affidavit of 09/23/13; Ex. 1, MacQuigg Dep., pp 177180; [Doc 114, Order on Preliminary Injunction].
15.
In an effort to address Plaintiff's conduct that they viewed as disruptive,
Defendant Esquivel Esquivel and Defendant Tellez met with Plaintiff in 2008 or 2009. However,
those meetings did not result in any significant change in Plaintiff's behavior. Ex. D, Esquivel
Dep., at 69:9-71:15. Disputed. Nothing in the testimony cited by Defendants establishes, or
even suggests, that Defendant Esquivel met with Plaintiff to address Plaintiffs allegedly
disruptive behavior at Board meetings. Defendant Esquivels description of the meeting suggests
that the meeting was intended to persuade Plaintiff that the Board was listening to his criticisms.
Furthermore, this Court has already held that Plaintiffs behavior that Defendants characterize
as disruptive was protected speech and not disruptive. Doc 114, Order on Preliminary
Injunction.
16.
Prior to the public comment portion of every APS Board meeting, the APS Board
14
Secretary reads the following statement: "Speakers must conduct themselves in a professional
manner ... Disruptive or disrespectful behavior will not be tolerated. If you cannot comply with
these rules of decorum, then you will be asked to return to your seat or asked to leave at the
Board President's discretion." Ex. F, Policies Related to APS Board Meetings. Partially
Disputed. While it may be true that the Board is supposed to read the above-mentioned
statement before the public forum portion at all regular meetings of the Board, the video and
audio recordings of the Board meetings that are a part of the Court record establishes that the
statement was omitted from the script, and not read in full at any of the Board meetings. See
Ex.13, Lodging of Exhibits, DVD Disk A: APS001, APS002, APS005.
17.
On multiple occasions during Board meetings, outside of the public comment
portion of the meetings, Plaintiff has spoken out of turn, shouting comments and objections.
These outbursts have disrupted meetings and occasionally have resulted in Plaintiff's ejection.
Ex. A, at177:11-180:4; 181:20-25.; Ex. D, at pp. 114:1-3, 118:18-121:23, 123:3-125:11; Ex. E,
Tellez Dep., at pp. 128:14-130:21. Disputed. Plaintiff testified that he spoke outside of the
public comment period twice, two years before Defendants issued the Banning Order. On both
occasions Plaintiff did this because Board members had directed specific comments to him, and
both times the Board did not eject him from the meeting, nor is there any evidence that he
disrupted either meeting. Plaintiff denies that he shouted. He spoke only loud enough for the
Board members to hear him. Ex.1, MacQuigg Dep., pp. 177-180; Ex. 11, MacQuigg Affidavit of
09/23/13.
18.
APS hosted a gubernatorial debate on August 19, 2010. Due to space limitations,
attendance was limited to those who were on the attendance list and were issued a ticket by APS.
Ex. E, at 150:21-151:13; Ex. G, Armenta Dep., at 139:25-140:9; 142:5-144:25; 145:22-146:20;
15
and 156:8-12. Disputed/Incomplete. It is true that APS hosted a gubernatorial debate, but the
gubernatorial debate was held in conjunction with a properly noticed public meeting of the APS
Board District Relations committee. The notice for the public meeting is attached as Ex. 15. It is
well established that all public meetings of the APS Board including committee meetings, are
open to the public in accordance with the New Mexico Open Meetings Act, NMSA 1978, 1015-1 et seq. See Ex. 17, APS Board website, About Board Meetings,
http://www.aps.edu/about-us/board/about-board-meetings (last accessed 11/5/14). APS departed
from its usual practice of allowing anyone to attend by requiring attendees to possess a ticket to
enter the public meeting. Defendants claim this was due to space limitations. Ex.5, Armenta
Dep., 139:2 142:7. Although not reflected on the meeting notice, Defendants Brooks and
Armenta also testified that they personally selected the citizens who could attend the public
meeting by placing their names on a list, contrary to the Boards longstanding policy and practice
of allowing anyone wishing to attend a public to enter the meeting room. Id., also Ex. 2, Brooks
Dep., at 139; 147-148. Defendants Brooks and Armenta further testified that APS allowed some
individuals into the public meeting even though their names were not on the admittance list. Id.
Defendants admit that Plaintiff presented a valid entry ticket, but they prevented him from
entering the public meeting because his name was not on the pre-approved list and because they
assumed he would cause a disruption. Ex. 2, Brooks Dep., 143-149; Ex. 5, Armenta Dep., 142152.
19.
Plaintiff did not attempt to request a ticket from APS, but rather sought a "press
pass" (Plaintiff contends he is a member of the "press" by virtue of the operation of a blog). Ex.
A, at 206:2-8. Disputed/Irrelevant/Misleading. It is not relevant whether Plaintiff requested
an entry ticket from APS as nothing in the factual records suggests that Plaintiff was required to
16
request a ticket from APS. The Notice of the District Relations Committee meeting states that
Entrance to the gubernatorial debate is by ticket only[.] Ex.15 (notice of meeting/debate), and
Plaintiff had a ticket. Furthermore, as explained in Plaintiffs response to Undisputed Fact 18
above, APSs policies did not require Plaintiff to possess an entry ticket to attend a public
meeting of the APS Board, including committee meetings. Ex 16, 17 (polices, and APS Board,
About Board Meetings). It is undisputed that Plaintiff obtained a valid entry ticket from a public
official, Janice Arnold-Jones. Ex. 1, MacQuigg Dep., 205:11-16, 207:17-21. Plaintiff presented
the ticket to APS officials but was denied entry to the public meeting. Ex. 5, Armenta Dep.,
152:17-25; Ex. 2, Brooks Dep., 143:20 -144:21; Ex. 4, Tellez Dep., 150:21-151:13; Ex. 13,
Lodging of Exhibits, Disk A, at SUNP 0004 (APS Police officer announcing Plaintiff would be
denied entry despite holding a ticket). Furthermore, it is not relevant whether Plaintiff is a
member of the press or not. Plaintiff claims that his First Amendment rights were violated
because he was denied entry to the public meeting and the evidence establishes that Defendant
Brooks and Armenta denied him entry in retaliation for the exercise of his First Amendment
rights and on the basis of viewpoint discrimination. See excerpts of Brooks and Armenta
depositions set forth at pp. 48-50 below, incorporated here. Ex. 2, Brooks Dep., pp. 144-149; Ex.
5, Armenta Dep., 154: 11-21.
20.
Ms. Armenta, who helped organize the debate from APS's end, explained in her
deposition that APS denied requests for press passes from numerous bona fide members of the
press due to limited space at the debate. Ex. G, at 145:22-146:20. Partially
Disputed/Irrelevant. Plaintiff does not dispute that Defendant Armenta testified that members
of the press were denied press passes to the public meeting because of space limitations. Her
testimony is irrelevant, however, because Plaintiff should have been allowed to enter to the
17
public meeting because (1) it was an open meeting and (2) because he had a valid ticket.
Defendants Brooks and Armenta could not lawfully pick and choose who they wanted to attend
the public meeting, and, even if they lawfully could, they could not deny Plaintiff entry based on
their worry that he might cause a disruption, which is Defendants euphemism for Plaintiffs
prior exercise of his First Amendment rights.
21.
The debate was broadcasted live through several media sources and covered by
the major local television news outlets; additionally, several sources, including APS, made video
of the debate available in its entirety. Web links to those sites still exist, though in some cases the
video itself is no longer accessible. See http://www.koat.com/Education-FocusOfFirstGubernatorial- Debate/6136802 C'KOAT.com willlivestream the debate"), last accessed
October 16, 2014; http://www.newmexicopbs. org/productions/newmexicoinfocus/governorcandidatedebate-watch-it-live/, last accessed October 16, 2014; http://www.aps.edu/2010debate/2010-aps-gubernatorial-education-debate-video, last accessed October 16,2014.
Undisputed/Irrelevant. While Plaintiff does not dispute that the public meeting was carried live
on television and the internet, this does not validate Defendants decision to exclude Plaintiff
from the public meeting. As explained in Plaintiffs responses to Undisputed Facts 18, 19 and 20,
Plaintiff should have been permitted to enter the District Relations Committee meeting because it
was a public meeting open to the public and because he had a ticket. The mere fact that the
public meeting was broadcast live does not suspend Plaintiffs rights, or enable the Defendants to
exclude him on the basis of his viewpoint, as the Court has held. As noted above, in Undisputed
Facts Nos. 18 and 19, there is substantial evidence that Defendants Brooks and Armenta
excluded MacQuigg because of what this Court has already found to have been his protected
speech. See Doc. 114, Order on Preliminary Injunction.
18
22.
When Plaintiff was unable to obtain a press pass from APS, he obtained a ticket
that had been issued to another person. Ex. A, at 205: 11-206:8.

Undisputed/Irrelevant/Misleading. This fact, although undisputed, is irrelevant to the issues
before the Court. Defendants have not presented any evidence that the ticket was not
transferrable. In fact, the notice for the public meeting simply stated that Entrance to the
gubernatorial debate is by ticket only[.] Ex. 15; (meeting notice); Ex.1, MacQuigg Dep., pp.
205-212; Ex.5, Armenta Dep., pp. 142. The Notice does not say that entrance to the debate was
by invitation. Moreover, the ticket was not merely given to another person. It was given to a
public official, Janice Arnold-Jones. It was reasonable for Ms. Arnold-Jones to transfer the ticket
to one of her constituents, which is what she did. Ex.5, Armenta Dep., 152:16 153:3. Indeed,
Defendants testified that some individuals were allowed to attend the public meeting even
though they were not on the pre-approved list. Id. at pp. 142-144.
23.
Plaintiff attempted to attend the debate, but Mr. Brooks made the decision to deny
Plaintiff entry because Plaintiff had not been issued a ticket and was not on the attendance list.
Ex. G, at 151:17-152:22,156; Ex. I, Brooks Dep.,144:8-17. Partially Disputed/Incomplete. As
explained in Plaintiffs responses to Undisputed Facts 18 through 22, Plaintiff obtained a ticket
from an elected public official, Janice Arnold-Jones. Defendants allowed some individuals to
attend the public meeting even though they were not on the attendance list. Ex. 2, Brooks Dep.,
143:20 - 145:18. Also, as previously established, Defendants did not permit Plaintiff to enter the
public meeting because they believed he might be disruptive. See Ex. 4, Tellez Dep., 151:10-13;
Ex. 2, Brooks Dep., pp. 147 148, 150:22 151:6; Ex. 5, Armenta Dep., pp.142 144, 151:17
153:3. See also, Ex.13, DVD disk A, video: Eldorado Education Debate August 2010
(MacQuigg001745) at SUNP0004 (showing APS police officer evicting Plaintiff was doing so
19
upon orders of Superintendent Winston Brooks, despite having a valid ticket). See also
Defendants Brooks and Armenta deposition excerpts cited in response to Undisputed Fact No.
18, regarding their motives in excluding MacQuigg.
24.
Prior to the debate Plaintiff met with his associate, Mark Bralley (a person who
regularly attends APS meeting with Plaintiff and who sometimes takes photographs for
Plaintiffs use on his blog), and they discussed their belief that Plaintiff would be denied entry.
Ex. H, Bralley Dep., 148:11-149:8, 216-18. Disputed/Irrelevant/Misleading. It is not relevant
whether Plaintiff believed he would be denied entry to the public meeting. Moreover, the
allegation is not true. Plaintiff had no reason to believe he would not be allowed to enter the
public meeting. The testimony Defendants cite for this contention, when read in context,
establishes that it was Mr. Bralleys belief, not Plaintiffs, that Plaintiff would be denied entry to
the public meeting. But even if Defendants allegation were true, what relevance does it have on
whether Plaintiff was wrongly denied entry to a public meeting? Finally, it is irrelevant whether
Mr. Bralley took photographs for Plaintiffs blog. While Mr. Bralley and Plaintiff are friends,
they are not business partners and act independently. See Ex. 12, MacQuigg Affidavit of
11/7/14; Ex.9. Bralley Dep., pp. 81-84. They are citizens who happen to share an interest in the
business of the States largest school district, APS. Id. at 84; Ex. 3, Esquivel Dep. 78:22 79:22.
25.
Mr. Bralley then provided Plaintiff with a lapel camera in order to record his
attempt to enter the debate. (Ex. H, Bralley Dep., 148:23-149:4, 216:1-7). Disputed/Irrelevant.
The lapel camera in question was, in fact, a birthday gift to Plaintiff. Mr. Bralley did encourage
Plaintiff to wear the camera to the debate. Ex.12, MacQuigg Affidavit of 11/07/14.
26.
Soon after, at an Audit Committee meeting on August 25, 2010, which Plaintiff
attended with his associate Mr. Bralley, Plaintiff attempted to stand in an area of the room not
20
open to the public, and directly behind Superintendent Brooks. (Ex. D, at 105:2-4; Ex. J, Robbins
Dep., at 139:18-21). Disputed/Immaterial. The allegation is immaterial because Plaintiff was
not ejected from the Audit Committee meeting for standing in an area of the room he was not
supposed to stand in, or standing behind Defendant Brooks. Ex.12, MacQuigg Affidavit of
11/7/14. Defendant David Robbins ejected Plaintiff from the Audit committee meeting after
another individual, Mr. Bralley, allegedly ignored Defendant Robbins order to not use a
recording device at the meeting. See Order Granting Preliminary Injunction [Doc 114]. The
ejection took place well after the events described in Defendants Undisputed Fact 26. Ex.18,
Transcript of Mr. Robbins directive to move equipment prior to start of Audit Committee
Meeting; also, Ex. 13, DVD disk B, Audio of same, at (MacQuigg001743) Track 02.
Defendants decision to eject Plaintiff from the public meeting was improper because Plaintiff
did not do anything to disrupt the meeting. As reflected in the videotaped recording of the
exchange between Defendant Robbins, Mr. Bralley, and Plaintiff , Mr. Bralley admitted to
Defendant Robbins that he was the one who had left his recording device on after Defendant
Robbins instructed the audience to turn off all recording devices. Ex.13, Lodging of Exhibits,
DVD Disk A, at APS0006, audio at MacQuigg001743, Track 04. Mr. Bralley later testified at his
deposition that he, not Plaintiff, had left his recording device on and that he did not record any
portion of the executive session. Ex. 9, Bralley Dep. pp. 213-215, Finally, after ejecting Plaintiff
from the meeting Defendant Robbins made a statement suggesting that he ejected Plaintiff for
disparaging statements he had made about individuals associated with APS. Ex.13, at DVD Disk
B, MacQuigg001743, Track 04; Ex. 19 (Transcription of closing remarks by Mr. Robbins). This
is further proof that Defendant Robbins ejected Plaintiff from the meeting not because Plaintiff
21
was disruptive, but because Defendant Robbins disagreed with the things Plaintiff had previously
said.
27.
When Superintendent Brooks expressed his discomfort, the Chairman of the
Audit Committee, Board member David Robbins, asked Plaintiff to move. Instead of moving
immediately, Plaintiff argued with Mr. Robbins, disrupting the meeting. Ex. D, at pp. 210:17212:5; Ex. J, at pp. 130, 133. Disputed/Immaterial. See Plaintiffs response to Undisputed Fact
26. This alleged event, which Plaintiff disputes in his response to Undisputed Fact 26, took place
well before Plaintiff was ejected from the Audit Committee meeting. Moreover, the evidence
shows that there was no disruption. The Board had not designated the area of the room Plaintiff
was standing as off limits. When Defendant Robbins asked Plaintiff and Mr. MacQuigg to
move, they did as asked, and Defendant Robbins thanked them. There is no evidence that
Defendants used this alleged event as a basis for ejecting Plaintiff from the Audit Committee
meeting. Ex.18, Transcript of Mr. Robbins directive to move equipment prior to start of Audit
Committee Meeting; see also, Ex. 13, DVD disk B, Audio of same, at (MacQuigg001743) Track
02. Ex. 13, Disk B, at MacQuigg001742 (video of ejection from Audit Committee meeting);
Ex.19 (Transcript of closing remarks by Def. Robbins); and Ex.12, MacQuigg Affidavit of
11/07/14.
28.
Later in the meeting, after Mr. Robbins told all attendees to turn off their
recording devices and to leave the room so that the Audit Committee could go into closed
executive session, Plaintiff and Mr. Bralley stalled, and continued recording, again disrupting the
meeting. Ex. D, at 210:17-213:24,217:19-218:25; Ex. J, at 135:10-136:3, 139:23-141:20.
Disputed/Immaterial. There is no evidence that Plaintiff disrupted the Audit Committee
meeting by using a recording device. See Ex. 13, Lodging of Exhibits, Disk B, audio and video
22
of Audit Committee meeting. Defendant Robbinss statements at the end of the public meeting,
after Plaintiff had already been ejected, could cause a reasonable jury to find that Defendant
Robbins ejected Plaintiff from the meeting room because of things Plaintiff had said about
Defendants in the past. Id.; also Ex. 19, Transcript of closing remarks by Def. Robbins.
29.
When Plaintiff and Mr. Bralley returned after the closed session, Mr. Bralley
admitted that he had refused to turn off the recording device at the time instructed, and both
Plaintiff and Mr. Bralley were ejected from the meeting. Ex. J, at 135:10-136:3, 139:23-141:20.
Undisputed /Misleading. Mr. Bralley did not attempt to record, or record, any portion of the
executive session. Ex. 13, Lodging of Exhibits, Disk A at APS0006; Ex. 9 Bralley Dep., pp.
213-215.
30.
Plaintiff and Mr. Bralley had driven to the meeting together and were quite clearly
operating as a team. Ex. A, at 53:22-54:12,100:19-102:1; Ex. H, at 205:1-5; Ex. J, at 102,146-48.

Disputed/Immaterial. There is no evidence that Plaintiff and Mr. Bralley were acting as a team.
Indeed, Defendant Esquivel admitted in his deposition that he did not associate Plaintiff and Mr.
Bralley as being connected in anyway. Ex. 3, Esquivel Dep., 78:22 79:16. While Plaintiff
admits that Mr. Bralley is his friend, and they have a shared interest in observing, monitoring and
speaking about the activities of the APS Board, this did not make it reasonable for Defendant
Robbins to eject Plaintiff from the Audit Committee meeting because he thought that Mr. Bralley
had not acted quickly enough in turning off his equipment as he was leaving the room, before the
executive session began. See Ex.12, MacQuigg Affidavit of 11/7/14.
31.
However, Plaintiff further disrupted the meeting by arguing with Mr. Robbins and
acting as if he and Mr. Bralley were not together. Ex. J, at 154:10-22,171:5-172:6.

Disputed/Immaterial. It is immaterial whether Plaintiff disrupted the meeting by arguing with
23
Defendant Robbins because Defendant Robbins had already made the decision to eject Plaintiff
from the meeting. Furthermore, the exchange between Plaintiff and Defendant Robbins was not
disruptive. The entire exchange was recorded and is in evidence. See Ex. 13, Lodging of
Exhibits, Disk A, at APS0006. The video shows that Plaintiff merely denied Defendant Robbins
assertions that he had improperly recorded the meeting. Id. It was reasonable for Plaintiff to
explain to Defendant Robbins that he had done nothing wrong. After responding, Plaintiff left
the public meeting as ordered. Id.
32.
On his way out the door, Plaintiff intentionally walked into APS Chief Operating
Officer Brad Winter's personal space, and within inches of his face, whispered something
unintelligible. Ex. K, Winter Affidavit. Disputed/Immaterial. Plaintiff denies that he
intentionally walked into Mr. Winters personal space and whispered something to him. Ex. 11,
MacQuigg Affidavit of 09/23/13. The allegation is immaterial because Defendant Robbins had
already ejected Plaintiff from the meeting when this alleged interaction occurred. Finally, there is
no evidence that Defendants used or otherwise relied on this alleged incident as a basis for
issuing the Banning Order, which is the implication Defendants are hoping to draw. It is merely
another self-serving attempt to put Plaintiff in a bad light in an effort to somehow justify
Defendants conduct.
33.
Defendant Esquivel contacted APS counsel on August 26, 2010 regarding the
possibility of restricting Plaintiff's attendance at meetings pending a discussion about his

disruptive behaviors. See Exhibit L, Melendres Dep., 35: 11-18; 60:20-61: 10.
Undisputed/Incomplete. This Court has already found that what Defendants have claimed was
disruptive behavior was protected speech. See Doc. 114.
24
34.
In providing advice regarding the issuance of the September 1, 2010 letter,
counsel for APS, Arthur Melendres, and Defendant Esquivel discussed some of the events giving
rise to Defendant Esquivel's desire to take action; however, Mr. Melendres had observed the
majority of the disruptive action himself, and was apprised of the situation. Exhibit L at 35: 1118; 60:20-61:10. Disputed/Misleading/Incomplete. Plaintiff disputes that Mr. Melendres ever
witnessed any disruptive behavior by Plaintiff. The video evidence in this case contradicts Mr.
Melendres vague and nonspecific recollection of Plaintiffs behavior at Board meetings. See
Ex.13, Lodging of Exhibits, DVD Disk A, at APS 001, APS 002, APS 005. But even if Plaintiff
acted as Mr. Melendres describes, this was not a basis to ban Mr. MacQuigg from future
meetings. Furthermore, Mr. Melendres testified in his deposition that he believed it was a better
option that Esquivel discuss matters with Mr. MacQuigg rather than ban him from meetings.
Ex. 10, Melendres Dep., at 83.
35.
Defendant Esquivel drafted the September 1, 2010 letter and referred to Mr.
Melendres for review; Mr. Melendres' office performed legal research, reviewed the letter, and
approved it. Exhibit L at 55-61; 79:4-82:22; 85:25-86:21. Partially
Disputed/Misleading/Immaterial. Plaintiff admits that Mr. Melendres reviewed the September
1, 2010 letter. What Defendants statement of fact omits, leaving an incorrect impression, are
these facts: It was Defendant Esquivels idea to write the letter. See Ex. 3, Esquivel Dep., p. 246;
He asked Mr. Melendres to research the issue and Mr. Melendres researched whether it would be
possible to enjoin Mr. MacQuigg from attending meetings and concluded it would not be
possible; Defendant Esquivel told Mr. Melendres that an injunction was not what he had in
mind; rather, he wanted to exclude him until he stopped being disruptive (presumably ceasing
to address Board members individually and ceasing to criticize individual Board members or
25
staff members). Defendant Esquivel drafted the letter, Mr. Melendres office made a few edits
and Mr. Melendres approved sending it. Ex. 10, Melendres Dep., pp. 96, 106, 110-111.
Defendant Esquivel has never claimed to have been ignorant of the law. In fact, he is wellknown for his expertise in First Amendment issues. Ex. 3, Esquivel Dep., pp. 46-48. Mr.
Melendres testimony was that Defendant Esquivel asked him to confirm that the Board had the
inherent authority to prevent disruptive behavior. Ex. 10, Melendres Dep., p. 59-60. What
Defendant Esquivel told Mr. Melendres (falsely, as is established by this Courts opinion
granting the preliminary injunction) was that Mr. MacQuiggs conduct had reached the point
that it was so disruptive of the ability of the board to conduct its business that a step had to be
taken by the board president to stop the disruption Id. at p. 59: 13-18. The parties email
exchanges show that Defendant Esquivel asked Mr. Melendres to research whether the Board
could get an injunction against Plaintiff to bar him from meetings and the response, from outside
legal counsel, was to draw Defendant Equivels attention to a New Mexico Supreme Court case
that made it clear that a court would not enjoin a citizen from attending public meetings. See Ex.
20, (Email re NM Supreme Court case re injunction). It was only after receiving this advice that
Defendant Esquivel drafted the September 1 letter and sent it to Mr. Melendres. So the evidence
shows that Defendant Esquivel received the correct advice from Mr. Melendres firm, i.e., that a
court would not permit the exclusion of a citizen from public meetings. Rather, any injunction
had to be tailored to the specific disruptive behavior of the citizen at the earlier meetings. One
can only wonder what a court would have done if the Board had asked for an injunction to
prevent Plaintiff from criticizing individual board members during the public forum part of the
meeting. Whatever may be the parties disputes about Mr. Melendress legal advice, one thing is
clear: the advice and the letter were predicated on the assumption that Plaintiff had been and
26
continued to be disruptive and this Court has held that that was not the case. Given the
conflict between the legal advice and the facts, there is no basis for an advice of counsel
defense. See argument and authorities at Point C.2 of Plaintiffs memorandum in response.
While Mr. Melendres apparently acquiesced in Defendant Esquivel sending the letter,
Mr. Melendres appears to have disagreed with Defendant Esquivels decision to ban Mr.
MacQuigg from meetings for any period of time. As Mr. Melendres explained at his deposition,
It was [Defendant] Esquivels idea that he send a letter, and he asked Mr. MacQuigg to meet
with him. And after I thought about a time period ban, and thought about this, I thought that this
was clearly a better option. This, meaning the letter saying, Please meet with me. Q. The one
that is not a ban the September 1st 1etter that you describe as not a ban? A. But as an
invitation. Thats what Im describing as a better option. Ex. 10, Melendres Dep., 83:6-17.
When Defendant Esquivel finally sent Mr. Melendres his proposed letter to MacQuigg,
he commented to Mr. Melendres: Art, this might be a stretch. Id., line 24. Defendant
Esquivels draft was circulated to legal counsel on September 1 at 1:08 p.m. Ex. 21, (9/1/10
email circulating draft of banning letter to law firm). Mr. Melendres partner suggested they
remove the word disrespectful and insert the word disturb but concluded that it was a good
approach. Ex. 22, 9/1/10 McCormick email re disturb. This appears to have been the extent
of the advice of counsel.
The Court should decide for itself whether Plaintiffs two-minute statements during
public comment can reasonably be said to have been so disruptive of the ability of the board
to conduct its business that something had to be done. The videotapes contradict Defendant
Esquivels assertion. See Ex.13, Lodging of Exhibits, DVD Disk A, at APS 001, APS 002, APS
005. Indeed, the Board has been able to identify no moments other than the incident during the
27
Audit Committee meeting (which did not involve Plaintiff other than his being ejected for no
reason), since the November 5, 2009 warning letter a year earlier, (Ex. 23) in which Plaintiff
had done anything disruptive, even in the Boards expansive view of that term.
Finally, there is no evidence in the record, nor has Defendant Esquivel ever contended,
that Mr. Melendres approval of the letter overcame Defendant Esquivels knowledge of the law,
or the law he is charged with knowing, during an extraordinary circumstance, which is what
would be required to establish an advice of counsel defense to a civil rights violation.
36. On September 1, 2010, Mr. Esquivel and Mr. Tellez signed the letter informing
Plaintiff that he was not welcome to attend APS Board Meetings until Plaintiff met with Mr.
Esquivel and Mr. Tellez to discuss his behavior and to provide assurances that he would not
continue to disrupt Board meetings and threaten APS officials. (Ex. D, at 209-10,224-27,233,
237-38 (attached); Ex. E, at 75-77, 124, 138; Ex. M, September 1, 2010 Letter).
Disputed/Misleading. The Banning Order speaks for itself in that it indefinitely bans Plaintiff
from future meetings and conditions his privilege to attend on his willingness to abide by the
Boards rules of decorum which he had violated by criticizing Board members and
administrators by name. Ex. 24 (Doc22-1, exhib.D 09/01/10 Banning Letter); and Ex. 13,
Lodging of Exhibits, DVD Disk A, at APS 0005. See also this Courts Opinion granting
Preliminary Injunction, Doc. 114, pp. 10-13, finding that MacQuiggs conduct was not
disruptive.
37.
Mr. Tellez signed the letter and agreed with it, but had no role in preparing the
letter. Ex. E, at 75:10-76:19, 86-87. Admitted/Immaterial. Plaintiff admits that Defendant

Tellez signed the Banning Order and agreed with it. It is immaterial, however, whether
Defendant Tellez participated in the drafting of the Banning Order.
28
38.
Though Mr. Tellez signed the letter and thought it was a good idea, he also did
not think it was his place to tell the Board or his supervisors what they could or could not do.
Exhibit E, 91:4-19. Partially Disputed/Misleading/Immaterial. It is immaterial whether
Defendant Tellez did not think it was his place to tell the Board or his supervisors what they
could or could not do. When Defendant Tellez was asked whether he voluntarily signed the
Banning Order, he answered yes. Ex.4, Tellez Dep., 91:20-22. When asked whether Defendant
Tellezs supervisors forced him sign the Banning Order, he answered, no, they did not tell me to
sign the letter. Id. at 91:23-92:1.
39.
Mr. Brooks did not draft or sign the letter, and did not believe that it was his place
to approve a letter written by the Board Chairman and approved by legal counsel, but Mr. Brooks
approved of the sentiment. Ex. I, Brooks Dep. at 63-65. Disputed/Misleading. While it is
correct to assert that Defendant Brooks signature was not on the letter, the factual record is clear
that Defendant Brooks participated in the decision to ban Plaintiff and send the Banning Order,
approved the Order and was more than sufficiently involved in the process to have personally
participated within the meaning of controlling law. See Ex. 4, Tellez Dep., 83:25-84:3, 84:2485:9, 87:21-88:7; Ex. 2, Brooks Dep., 62:8-14, 63:17-24, 64:5-65:8, 65:14-19, 66:1-10, 66:1825, 67:20-68-19, 69:11-19, 75:19-25.
40.
Mr. Esquivel and Mr. Melendres have testified that the September 1, 2010 letter
was not motivated by the content of Plaintiff's speech, but rather was intended to prompt a
meeting with Plaintiff to assure that he did not continue his disruptive behavior. Ex. D at 224:22225: 13. Admitted/Disputed. Plaintiff admits that Defendants Esquivel and Melendres testified
as indicated. However, Plaintiff disputes the truth of the assertion because it is a self-serving
statement that is contrary to the evidence. There is ample evidence in the record for a jury to
29
find that Defendants issued the Banning Order because of Plaintiffs speech. Indeed, the Court
relied on this evidence in its Opinion granting Plaintiffs Motion for Preliminary Injunction.
[Doc. 114, p. 1]. The events described in the Banning Orderthe ejections from the November
4, 2009 regular meeting and the August 25, 2010 Audit Committee meetingshow that it is
more likely than not that Defendants issued the Banning Order because they disagreed with and
were angered by Plaintiffs criticisms of them. As this Court found, what Defendant Esquivel
and the other Defendants characterize as disruptiveness was protected speech. Doc. 114, pp. 513. Furthermore, all of the evidence in response to Defendants Undisputed Fact No. 14
establishes that Plaintiff was not disruptive at any time.
41.
Mr. Esquivel and Mr. Melendres did not view the letter as a "ban." Ex. D, at
225:19-226:11,237:6-13. Disputed. The Banning Order speaks for itself in that it indefinitely
bans Plaintiff from future meetings and conditions his privilege to attend on his willingness to
abide by the Boards (unlawful) rules of decorum, which he apparently had violated by
criticizing Board members and administrators by name. Ex. 22 [Doc. 22-1, Exhib. D at Disk A,
APS 0005] and Ex. 13, lodging of exhibits. Defendant Esquivel, at the time the letter was under
consideration described it as a ban. Ex. 27.
42.
After issuance of the September 1, 2010 letter, APS officials first contacted
Plaintiff to try to set up the meeting on November 9, 2010. Ex. N, Emails Regarding Meeting.
Partially Disputed/Irrelevant. Plaintiff does not dispute that the parties engaged in some back
and forth discussion to schedule a meeting. Plaintiff, however, disputes the assertion that he did
not take affirmative steps to arrange a meeting or that, whatever the facts are, this somehow
relieves the Defendants of the obligation to permit Mr. MacQuigg to attend and speak at Board
meetings, nor is this even relevant to the claims before the Court. Furthermore, Defendants
30
characterization of the facts is incorrect. Mr. MacQuigg initially made arrangements to meet, but
after APS could not find a suitable time and after APS stopped communicating with him, he
consulted and retained legal counsel. Ex. 1, MacQuigg Dep., pp. 143-148; Ex. 11, MacQuigg
Aff. of 9.25.13. Mr. MacQuiggs legal counsel engaged in several communications with APSs
legal counsel, Mr. Art Melendres, including sending the final written communication between
the parties before the litigation commenced, to which Mr. Melendres did not and has never
responded. Ex. 28A-D. Mr. MacQuiggs counsel requested evidence that Mr. MacQuigg had
disrupted meetings and acted in a threatening manner, and requested the legal basis of the ban.
Id. After APS failed to respond, Plaintiff filed this lawsuit.
43.
APS officials then set a meeting with Plaintiff on November 16, 2010; however,
Plaintiff cancelled the meeting. Ex. A, at 143-44; Ex. D, at 40:19-41:5; Ex. E, at 141:15-142:1.
Disputed/Irrelevant. See Plaintiffs response to Undisputed Fact # 42.
44.
APS officials and APS' s attorney, Mr. Melendres, made additional attempts to set
the meeting, but were unable to secure a date with Plaintiff. Ex. E, at 141: 15-142: 1; Ex. N.
Disputed. See Plaintiffs response to Undisputed Fact # 42.
45.
For his part, Plaintiff has testified that he felt no obligation, and made no
affirmative effort, to set up or attend a meeting with Mr. Esquivel and Mr. Tellez. Ex. A, at 14548. Disputed/Irrelevant/Misleading. See Plaintiffs response to Undisputed Fact # 42.
Defendant Tellez also testified that it was his responsibility to arrange the meeting. Ex. 4, Tellez
Dep., 146:14-16. Plaintiff testified that it was clearly in [Defendants] court to arrange the
meeting. MacQuigg Dep., 144:17 - 147:9.
46.
Plaintiff has testified that he has no intention of changing his behavior and that
part of why he never pursued the meeting with Mr. Esquivel and Chief Tellez was that it would
31
require him "to agree that I had done something wrong, which I have not, and that I wouldn't do
it again, which I had every intention of." Ex. A at 146:15-147:9.
Undisputed/Immaterial/Misleading. Plaintiff admits that he testified that he believed he has
done nothing wrong, and that the ban was unwarranted. The alleged fact is immaterial to
Defendants Motion for Summary Judgment because it does not establish that Plaintiff has any
intention of disrupting future meetings. Moreover, the alleged fact is misleading because, by
including it, Defendants apparently wish to imply that Defendant will cause future disruptions if
his right to attend and speak at Board meetings is restored. As previously established, there is no
evidence that Plaintiff ever disrupted Board meetings or that he will cause future disruptions. See
Doc. 114, Order on Prelim. Inj.
47.
On two occasions after issuance of the September 1, 2010 letter, APS police
officers caught Plaintiff trying to sneak through a side door at 6400 Uptown Blvd. Ex. E at
206:9-14. Disputed. Mr. MacQuigg testified that he never attempted to sneak into a side door at
APS Headquarters to evade APS police. See Ex. 11, MacQuigg Aff. of 9.25.13. Moreover, the
Banning Order does not prohibit Mr. MacQuigg from entering any APS property, including at
APS Headquarters, even though the Banning Order has been wrongly interpreted in the past to
bar Mr. MacQuigg from all events at APS Headquarters, not just APS Board meetings. Ex. 4,
Tellez Dep., pp. 70-74, 92. The events in question did not take place. Ex. 11, MacQuigg Aff. of
9.25.13.
48.
The September 1, 2010 letter did not prevent, and has not prevented, Plaintiff
from attending APS meetings held at locations other than 6400 Uptown Blvd. Ex. A, at 17-19;
Ex. E, at 68:15-18, 92:7-23. Partially disputed/Immaterial/Misleading. Plaintiff admits that
the Banning Order only prevented him from attending the regular meetings of the APS Board.
32
Plaintiff disputes any assertion that the Banning Order permitted him to attend the Boards public
meetings at locations other than at 6400 Uptown Blvd. The Banning Order speaks for itself. Ex.
24. It applies to all of the Boards public meetings regardless of where the meetings are held. Id.
It is true that Plaintiff was able to attend APS press conferences and community meetings while
the Banning Order was in effect, but these meetings were not public meetings of the APS Board.
Exs. 16, 17. Indeed, this is further proof of the unreasonable nature of the ban. Why may
Defendants preclude Plaintiff attending and participating in the public meetings of the Board,
but permit him to attend other APS meetings like press conferences and community meetings?
The fact that the Banning Order was limited in this way tends to establish that Defendants
motives were not that Plaintiff was a threat or would be disruptive. Rather, they excluded him
from the meetings at which he was allowed to speak.
III. ARGUMENT
A.
Applicable Legal Standards.
In characterizing the legal standards that are applicable to a motion for summary
judgment, Defendants statements are correct as far as they go, but they are incomplete as to the
issue of qualified immunity. The Defendants state that once a defendant raises a qualified
immunity defense, the plaintiff then has the burden to show both that the defendants alleged
conduct violated the law and that the law was clearly established when the alleged violations
occurred. (Quoting Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 646 (10th
Cir 1988). While this is a correct statement, the Defendants omit the cautioning and limiting
language of decisional law that even though a plaintiff must establish these two prongs, a court
draws all reasonable inferences from the evidence in plaintiffs favor and resolves all factual
disputes in the plaintiffs favor, including the issue of whether the law was clearly established at
33
the time of the events. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) ([U]nder either prong,
courts may not resolve genuine disputes of fact in favor of the party seeking summary
judgment). See also, Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009) (In
determining whether the plaintiff has met his burden of establishing a clearly established
constitutional violation, we will construe the facts in the light most favorable to the plaintiff as
the nonmoving party.).
Even if the standard were less favorable for Plaintiff, the Defendants would have no basis
to seek summary judgment on any part of Plaintiffs claims, including on the basis of qualified
immunity, except to the extent that a particular Defendant may not have played a sufficient role
in one or another of the constitutional violations. As to the latter point, the parties have reached
agreement on a stipulation regarding which Defendants personally participated in which of the
events at issue, with the exception that they disagree regarding Defendant Brooks role in the
Banning Order. See Point B, below.
B.
As to the one Issue Regarding Defendant Brooks Participation in the

Banning Order and as to the issues related to Qualified Immunity
The Court Should Deny Defendants Motion.
1.
The parties stipulation resolves all but one of the issues raised by the
individual Defendants regarding their personal participation in
each of the events giving rise to Plaintiffs claims.
The parties have agreed that, for purposes of summary judgment, the participants in the
events giving rise to Plaintiffs claims, as to each event, were the following and Plaintiff does
not seek recovery against the other Defendants except as set forth below:
-
As to the expulsion of Plaintiff from the November 4, 2009 Board meeting:

Defendant Esquivel.
34
As to the events involving the committee meeting that included the gubernatorial
debate on August 19, 2010: Defendants Armenta and Brooks.
As to the ejection of Plaintiff from the August 25, 2010 Audit Committee meeting:
Defendant Robbins.
As to the September 1, 2010 letter to Plaintiff regarding future attendance at Board

meetings: Defendants Esquivel, Tellez, and Brooks.10
Although Defendants acknowledge that Plaintiff is asserting claims arising from the Banning
Order against Defendant Brooks, Brooks maintains that he did not personally participate in the
issuance of the Banning Order and is entitled to summary judgment on that basis and on the basis
of advice of counsel. Doc. 135, Def. Br., pp. 11-14.
Accordingly, the parties stipulation resolves all of the claims of lack of personal
participation except for Defendant Brookss involvement in the issuance of the Banning Order.
Nor does it resolve any of the Defendants qualified immunity claims, including Defendant
Esquivels, Tellezs, and Brooks advice of counsel defense.
2. There is more than enough evidence of Defendant Brooks participation in
the Banning Order of September 1, 2010 to establish civil rights liability.
Defendants argue that the law is clear in the Tenth Circuit that individual liability under
Sec. 1983 must be based on personal involvement in the alleged constitutional violation. Doc.
135, Def. Br., p. 12, emphasis added, quoting Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.
1997). Plaintiff fully agrees with this characterization of the controlling law. What Plaintiff
10
The issue of qualified immunity does not affect whether Plaintiff is entitled to declaratory and
injunctive relief against the APS Board as it relates to the issuance and ongoing enforcement of the
Banning Order. Nor does the issue of qualified immunity affect Plaintiffs claims that the Boards
personal attacks and personnel issues policies are unconstitutional both facially and as applied.
Qualified immunity, however, does not apply to claims for equitable relief. Kikumura v. Hurley, 242
F.3d 950, 962 (10th Cir. 2001); And see, Cannon v. City & County of Denver, 998 F.2d 867, 876 (10th
Cir.1993).
35
does not grasp, however, is the basis for Defendant Brooks factual assertion that he was not
involved in the issuance of the banning letter.
Defendant Brookss deposition testimony and the Defendants interrogatory answers
attest to his involvement. At his deposition, Defendant Brooks testified as follows: Q. Did you
play any role in the approval or issuance of the September 1, 2010 letter? A. Not in the
approval. I think during the discussions about what we should do, I was certainly part of those
discussions. [Ex. 2, p. 62].I think better stated would be that I approved of the letter. I really
dont have any authority to approve a letter written by the board president, or legal counsel. [Id.,
p. 63] Q. Im directing you to the third paragraph under the answer to interrogatory number
one...And for the recordit says Winston Brooks reviewed a draft of the September 1st, 2010
letter, and approved the letter subject to the approval of outside counsel. [Id., pp. 63-64]. A. I
was given a copy [of the letter] to look at, and to see if there was anything in there that was
bothersome to me, and there was not. [Id., p. 65]. I reviewed a draft. I actually had the
opportunity. [Id., p. 66]. I was involved in some of the discussions [of the letter] [Id., p. 66].
Im sure I was consulted about whether or not it was a good idea or not. [Id., p. 68]. In
response to a question about how many conversations he had had regarding the issuance of the
letter, Brooks testified, My guess would be five, six. [p. 68]. When asked whether he told
defendant Tellez, his subordinate, to sign the letter, Brooks response was: I dont recall that I
did direct him, but I certainly would have encouraged him. [p. 76]. In email correspondence
with Defendant Esquivel and Mr. Melendres, five days before the issuance of the Banning Order,
Defendant Brooks gave his view regarding the letter: I actually think you are being too soft, i.e.,
giving him the opportunity to talk to you, me, etc. We have all done that before without any
apparent changes in behavior. I think you would have unanimous support to ban him for the
36
entire 2010-2011 school year from all APS sites. [Ex. 27, Email Brooks to Esquivel, cc
Melendres, of 8/26, 2010].
Thus Defendant Brookss own deposition testimony and contemporaneous
communication establishes his significant involvement in the Banning Order. Like other
elements of a civil rights claim, the issue of personal involvement is inappropriate for summary
judgment when there is evidence in the record sufficient to allow the fact-finder to conclude that
it existed. Dodds v. Richardson, 614 F.3d 1185, 1204 (10th Cir. 2010).
C.
No Defendant is Entitled to Qualified Immunity.

1.
The relevant civil rights law was clearly established when the
Defendants violated Plaintiffs first and fourteenth amendment rights.
In their memorandum, Defendants point out, correctly, that once a defendant raises a
defense of qualified immunity, the plaintiff must show that a defendants conduct violated the
law and that the law was clearly established at the time of the alleged violation. Doc. 135, Def.
Br., p. 10. Defendants do not concede, as they should, that their conduct as alleged violated the
law, nor do they concede, for purposes of summary judgment, that the applicable law was clearly
established. Once again, while the Defendants are of course free to preserve their claims and
defenses should a trial on the merits be required or for appeal, they are not in a position, at this
stage, to suggest that they are entitled to summary judgment on the basis of qualified immunity.
As to the issues of whether the Defendants violated Plaintiffs constitutional rights, this
Court has already held that the Defendants conduct did so. See Doc. 114, Order Granting
Prelim. Inj., pp. 10-14. The second issue is whether that law was clearly established when
Defendant Esquivel ejected Plaintiff in November, 2009 (chronologically the first event alleged
in the complaint).
37
It is no surprise that the extent of Defendants argument is to assert that the Plaintiff must
establish that the law was clearly established. Defendants do not cite any authorities suggesting
that the law was not clearly established; leaving it to Plaintiff to show the obvious.
The Supreme Court has long identified the suppression of speech by public officials to
unlawful:
It is axiomatic that the government may not regulate speech based on its
substantive content or the message it conveys (citations omitted)When the
government targets not subject matter, but particular views taken by speakers on a
subject, the violation of the First Amendment is all the more blatant. (Citations
omitted.)
Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 828-830 (1995)
(forbidding viewpoint discrimination regardless of nature of forum). See also, Hansen v.
Westerville City School Dist. Bd. of Educ., 43 F.3d, 1472, 1480 (C.A. 6 Ohio), 1994 WL 622153,
8 (6th Cir. 1994) (Unpublished decision that Plaintiff cites to show law was clearly established
long before the events here).
It was well established in 1988, when the cause of action arose, that members of
the public had a right to attend a public school board meeting. See Madison Joint
Sch. Dist., 429 U.S. at 176; Mosley, 408 U.S. at 96. A reasonable police officer in
the position of Officer Tiburzio would have known that he could not exclude
members of the public from a school board meeting solely on the basis of their
viewpoints.
Id. Furthermore, to the extent that the Defendants continue to argue that they could lawfully
prevent the Plaintiff from discussing personnel issues at their meetings, the Tenth Circuit long
ago rejected such a proposition. Mesa v. White, 197 F.3d 1041, 1046 (10th Cir. 1999) (public
body lacks any significant interest in restricting the public's ability to present its views on
personnel or litigation matters at a public meeting. The performance of public employees and the
handling of employment-related litigation can be important matters of public concern.). For
38
that matter, this Court has already rejected Defendants contention that plaintiffs comments
related to personnel matters. Doc. 114, Order Granting Prelim. Inj.
A year before the events in this case, a Michigan federal court, relying on decades-old
Supreme Court cases, explicitly addressed whether the law that is at issue in this case was
clearly established:
It is also clearly established that content-based restrictions on speech in a public
forum are subject to strict scrutiny, while viewpoint-based restrictions violate the
First Amendment regardless of whether they also serve some valid time, place,
manner interest. See, e.g., Good News v. Milford Cent. Sch., 533 U.S. 98, 106107(2001); Rosenberger v. Rector & Visitors of Univ. Of Va., 515 U.S. 819, 829
(1995); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384,
392-393 (1993).
Timmon v. Wood, 633 F.Supp.2d 453, 462 (W.D.Mich.,2008), This language echoes the longstanding decisional law that, even in a non-public forum, and regardless of the standard of
scrutiny, the government cannot discriminate on the basis of viewpoint. Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985) (Even in a nonpublic forum,
restrictions must be viewpoint neutral). Eight years before the events in this case, the United
States Supreme Court summarized the law relevant to the present qualified immunity issue:
When the State establishes a limited public forum, the State is not required to and
does not allow persons to engage in every type of speech. The State may be
justified in reserving [its forum] for certain groups or for the discussion of
certain topics. (Citations omitted.) The State's power to restrict speech, however,
is not without limits. The restriction must not discriminate against speech on
the basis of viewpoint (citation omitted), and the restriction must be reasonable
in light of the purpose served by the forum, (emphasis added)
Good News Club v. Milford Central School, 533 U.S. 98, 106-107 (2001), citations omitted
(Emphasis added). Courts also had addressed the prior existence of law related to banning
citizens from public meetings because of earlier disruptive conduct, relying on earlier decisional
law:
39
A prior restraint of expression exists when the government can deny access to a
forum before the expression occurs. Bourgeois v. Peters, 387 F.3d 1303, 1319
(11th Cir.2004). Such a prior restraint of expression comes before [the] court
with a heavy presumption against its constitutional validity. Universal
Amusement Co. v. Vance, 587 F.2d 159, 165 (5th Cir.1978) (citing Bantam Books,
Inc. v. Sullivan, 372 U.S. 58, 70 (1963); New York Times Co. v. United States, 403
U.S. 713, 714 (1971)). Moreover, the government cannot prohibit future
expressive activity as a result of past unlawful conduct. Polaris Amphitheater
Concerts, Inc. v. City of Westerville, 267 F.3d 503, 507 (6th Cir.2001) (where a
law sets out primarily to arrest the future speech of a defendant as a result of his
past conduct, it operates like a censor, and as such violates First Amendment
protections against prior restraint of speech).
Brown v. City of Jacksonville, Fla., 2006 WL 385085, 4 (M.D.Fla.) (Plaintiff has included the
internal citations to show the dates of the controlling decisions). In Norse v. City of Santa Cruz,
629 F.3d 966, C.A. 9 (Cal.) 2010, the Ninth Circuit Court rejected the same litany of arguments
that the Defendants have posited here, in a case with striking similarity, as the Court described:
Norse could no doubt have presented lots more evidence that he never disrupted
the Santa Cruz council meeting, but what would have been the point? The video
speaks for itself: Norse raises his hand in a brief, silent protest of the mayor's
treatment of another speaker. The mayor ignores Norse's fleeting gesture until
Councilman Fitzmaurice throws a hissy fit.
Listeners' reaction to speech is not a content-neutral basis for regulation....
Speech cannot be ... punished or banned[ ] simply because it might offend a
hostile member of the Santa Cruz City Council. Forsyth Cnty., Ga. v. Nationalist
Movement, 505 U.S. 123, 13435 (1992). The council members should have
known that the government may never suppress viewpoints it doesn't like. See
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct.
2510, 132 L.Ed.2d 700 (1995). Though defendants point to Norse's reaction to
Councilman Fitzmaurice as the disruption that warranted carting him off to jail,
Norse's calm assertion of his constitutional rights was not the least bit disruptive.
The First Amendment would be meaningless if Councilman Fitzmaurice's petty
pique justified Norse's arrest and removal.
Id. at 982. A Connecticut court stated the foregoing particularly succinctly:
[T]he right to attend a public meeting, see, e.g., Police Dep't of City of Chicago v.
Mosley, 408 U.S. 92, 96 (1972), [was] well-established in 1994, when the
plaintiff's cause of action arose. See Harlow, 457 U.S. at 81819 (If the law was
clearly established, the immunity defense ordinarily should fail, since a
40
reasonably competent public official should know the law governing his
conduct.)
Burton v. Stergue, 1998 WL 893151, 7 (D.Conn.,1998) (unreported).
In the case at bar, this Court has already determined that the Defendants conduct in
barring the Plaintiff was based on the content of Plaintiffs speech. There is no question that the
law was clearly established in 2009 that a public body, during a public comment period,
cannot silence speakers on the basis of viewpoint and may not ban them from future public
meetings, even if they had been disruptive in the past.
Here, the videos show the same thing they did in Norse: Plaintiffs calm assertion of his
right to speak on matters of importance regarding APS simply angered the Defendants, who
continue to implacably insist that he was being disruptive. Ex. 13, Lodging of Exhibits, Disk
A at APS001, APS002, APS005.
2.
Defendants Esquivel, Tellez and Brooks are not entitled to rely on

advice of counsel to establish qualified immunity.
Defendants discussion of the case law related to advice of counsel in the context of the
defense of qualified immunity is also lacking. Defendants assert that because the Boards
attorney reviewed the Banning Order before Defendants Esquivel and Tellez signed and sent it,
it is an extraordinary circumstance entitling the relevant Defendants to qualified immunity
notwithstanding the clearly established law, relying on the Tenth Circuits holding in Gomes v.
Wood, 451 F.3d 1122, 1134 (10th Cir. 2006), Doc. 135, Def. Br. p. 14. Gomes, however, does
not stand for any such blanket proposition. It merely acknowledges that advice of counsel can in
rare circumstances supports a claim of qualified immunity and it touches on the circumstances
for its applicability in language that is apt here, but in the most pertinent part omitted from
Defendants brief:
41
Finally, if the law was clearly established, we proceed to the third part of the
inquiry. We ask whether, in spite of the fact that the law was clearly established,
extraordinary circumstancessuch as reliance on the advice of counsel or on a
statuteso prevented [the official] from knowing that [her] actions were
unconstitutional that [she] should not be imputed with knowledge of a clearly
established right. [W]here the right is clearly established, a defendant
should only rarely be able to succeed with a qualified immunity defense. Id.
(internal quotation marks omitted).
Id. at 1136. (Citations omitted.) (Emphasis added, brackets in original.) The Tenth Circuit
elaborated:
Whether reliance upon legal advice bars our imputation to [the defendant] of
constructive knowledge concerning the laws allegedly violated by his conduct,
depends upon the circumstances of each case. Relevant factors include how
unequivocal, and specifically tailored to the particular facts giving rise to the
controversy the advice was, whether complete information had been provided to
the advising attorney(s), the prominence and competence of the attorney(s), and
how soon after the advice was received the disputed action was taken. (citations
omitted)
See V-1 Oil Co. at 1488-89. [T]he question is whether the consultation so prevented [the
official] from knowing that his actions were unconstitutional that he should not be imputed with
knowledge of a clearly established right. Roska v. Peterson, 328 F.3d 1230, 1251, C.A. 10
(Utah 2013).
Merely consulting with an organizations attorney regarding a proposed course of action
is not enough to establish the defense. [G]iven the Supreme Court's admonishment that a
reasonably competent public official should know the law governing his conduct, Mr. Reed
must point to something in his consultation with the city attorney that prevented him from
knowing the law. This he has not done. The district court therefore erred by granting Mr. Reed
immunity on the basis of his consultation with the city attorney. Lawrence v. Reed, 406 F.3d
1224, 1230 -1231 (10th Cir. 2005). (Citations omitted, emphasis added.) Here, as noted below,
42
the only person who consulted with counsel was Defendant Esquivel, himself an expert in first
amendment law and hardly someone who could have been prevented from knowing the law.
In this case, the following factors prevent the Defendants from relying on an advice of
counsel defense, given the Tenth Circuits decisional law:
1. The advice (if Mr. Melendress review of the Banning Order can be considered
advice11), was not tailored to the facts giving rise to the controversy. The attorney,
Mr. Melendres, only reviewed a letter drafted by Esquivel. Ex. 10, Melendres Dep.,
pp. 59-60. The predicate for the letter, as it was finally sent, was that Plaintiff had
disrupted earlier meetings and would continue to disrupt them in future if he was
allowed to continue to attend. Ex. 24, Banning Order. This Court has already found,
based on the evidence (particularly including the videos) that Plaintiff was not
disruptive. Accordingly, the Banning Order (to the extent that it can be said to reflect
the opinion of counsel) is based on a predicate that is contrary to fact. Indeed, one
can only guess what Mr. Melendress advice would have been if the Defendants
had asked the right question: Can we ban Plaintiff because his viewpoint on
Character Counts! and the way he asks questions ticks us off?
2. To the extent that Mr. Melendres provided any actual legal advice, as such, to
Defendants Esquivel, Tellez and Brooks, it was to inform them that, under New
Mexico decisional law, Los Lunas Consolidated Sch. Dist Bd. Of Ed. V. Zbur, 89
11
On behalf of Defendant Tellez, Defendants make the extraordinary argument, at p. 14 of their brief, that
Extraordinary circumstances exist to grant qualified immunity to Mr. Tellez because the September 1,
2010 letter was sent only after being reviewed and approved by APSs outside counsel, Mr. Melendres.
Defendants cite Gomes, supra, 451 F.3d at 1134 in support. But Gomes makes no mention of an
attorneys approval of a letter, and, in any event, there is no evidence in the record that Defendant Tellez
relied on Mr. Melendress advice or that anything Mr. Melendres did or said so prevented [Defendant
Telles] from knowing that [his] actions were unconstitutional that [he] should not be imputed with
knowledge of a clearly established right. Id.
43
N.M. 454, 553 P.2d 1261 (1976), a court would not exclude Plaintiff from public
meetings for past transgressions. Ex. 20. Zbur involved a prior assault at a meeting.
Id.
3. When Defendant Esquivel first wrote to Defendant Brooks and to Mr. Melendres
about the matter, he actually described a situation that is at least closer to reality than
the Defendants present assertion that Plaintiff was disruptive:
[M]y inclination
is to write Ched a letter informing him that he can no longer attend meetings based on
his refusal to observe rules of decorum and to be respectful. (Emphasis added.) Ex.
27. Significantly, the draft letter that Defendant Esquivel proposed and Defendant
Brooks had approved included the warning that the ban would continue unless
Plaintiff satisfied Defendants Esquivel and Tellez that he would not be
disrespectful. Ex. 21. Mr. Melendres law partner, who was asked to comment on
the draft, responded, inter alia, Im not sure we should say disrespectful.
Belligerent is OK, but barring someone for being disrespectful just sounds more like
well throw you out if you criticize us. Ex. 22. In other words, legal counsels
advice was predicated on facts that legal counsel tailored to meet the desired
outcome of sending Plaintiff a banning letter for disruption. Of course, this Court
has already determined that the videotapes and other evidence support none of this.
The fact remains that Plaintiff was banned because what he had said had angered the
Board.
4. There is no testimony, nor would it be credible to claim, that Mr. Melendress
advice to Defendant Esquivel went to anyone other than Defendant Esquivel, who
was the only Defendant who discussed the letter with Mr. Melendres, and the only
44
one who can reasonably claim to have relied on Mr. Melendress advice, such as it
was. Defendant Esquivel is a lawyer and an expert on the First Amendment. Ex. 3,
Esquivel Dep., pp. 46-49. Nowhere has Defendant Esquivel testified, nor would it be
credible if he did, that Mr. Melendress advice so prevented [him] from knowing
that [his] actions were unconstitutional that [he] should not be imputed with
knowledge of a clearly established right Gomes, supra, 451 F.3d 1135.
5. Other than the fact that they knew that Mr. Melendres had approved sending the
Banning Order, neither Defendants Tellez nor Brooks has testified that they knew
anything about the advice that Mr. Melendres supposedly provided, much less
testified that it prevented them from knowing that their actions were unconstitutional.
If Defendants Brooks and Tellez are contending that being told Our lawyer has
approved this letter is sufficient to create a defense to a violation of clearly
established civil rights law, then they will have to change the clearly established law
regarding advice of counsel. Id.
6. Defendant Esquivel, a lawyer and expert in First Amendment law, referred to the
letters expulsion of Plaintiff as a stretch. Ex. 10, Melendres Dep., 83: 24; Ex. 30.
7. Undoubtedly because of the New Mexico case law that rejected expelling someone
from public meetings for past misconduct, Mr. Melendres testified that he believed
inviting Plaintiff to discuss his behavior during public comment, rather than banning
him, was a better option. Ex. 10, Melendres Dep., 83: 2-17.
8. The Defendants now claim that the letter was not a ban as such, but rather an
invitation to meet and discuss matters. Doc. 135, Defs Undisputed Facts Nos. 40 and
41. This assertion is revisionism untethered to the reality that existed at the time. In
45
Defendant Esquivels email to Winston [Brooks], Art [Melendres] and Brenda

[Yager], Esquivel described his intent in sending the letter: [M]y inclination is to
write Ched a letter informing him that he can no longer attend meetings based on his
refusal to observe rules of decorum and to be respectful.The gist of a letter to him
needs to be clear that he is being banned for his conduct and not his speech Ex.
27. (Emphasis added.) As the Court is aware, and as the videos of the Board
meetings show, Plaintiffs conduct was not disruptive. It simply violated the Boards
unlawful ban on criticisms directed at Board members and its rule against discussion
of personnel issues (which this Court explicitly found, in any event, that the
Plaintiff had not violated). Doc. 114, Order Granting Prelim. Inj., pp. 11-13; also Ex.
13, Lodging of Exhibits, Disk A, at APS001, APS002, APS005.
9. Defendant Esquivel has never testified that he was ignorant of the law.
10. Neither Defendants Esquivel Tellez or Brooks assert that it is an undisputed fact that
they relied on Mr. Melendress advice or that Mr. Melendress conduct or opinion
overcame their knowledge of the law.
Placing the foregoing evidence in the context of the law relating to advice of counsel as a
basis for qualified immunity, it shows that the elements necessary to invoke that defense are
absent.
3.
Defendants Armenta and Brooks are not entitled to qualified

immunity in connection with their exclusion of the Plaintiff from
the District Relations Committee meeting at which a gubernatorial
debate took place.
Defendants Armenta and Brooks apparently concede their personal involvement in the
exclusion of the Plaintiff from the District and Relations meeting at which the gubernatorial
debate occurred but argue that they are entitled to qualified immunity. Doc. 135, Def. Br., p. 19
46
(alleging that there is no allegation of proof that Defendants Tellez, Robbins or Chavez are
alleged to have participated or did participate in the exclusion of Plaintiff from the meeting) and
20 (alleging Defendants Brooks and Armenta to be entitled to qualified immunity because they
did not violate any clearly-established right in excluding the Plaintiff).
These two Defendants qualified immunity argument runs as follows: If Plaintiff is
claiming Defendant Armenta should have given him press credentials, then there is no First
Amendment violation because the press does not have a constitutional right to free access to
government property or to a debate. Second, if what Plaintiff wanted to do was speak, he had no
First Amendment right to speak at the debate because that was not the format. Third, even if
Plaintiff had a right to listen to the debate and/or report on it, he could have watched it on
television. Fourth, Defendants argue that Plaintiff had no constitutional right to attend the
debate. Fifth, Defendants argue that there is no evidence or likelihood that Defendants Brooks
and Armentas exclusion of Plaintiff from the debate would chill his exercise of his First
Amendment rights. Doc. 135, Def. Br., 20-23. The lynchpin of the Defendants argument, in the
context of this case, however, is this statement, at p. 22: [T]here is no evidence to prove that
Mr. Brooks or Ms. Armenta denied entry to Plaintiff because they disagreed with Plaintiffs
point of view or sought to retaliate against Plaintiff for the content of his prior speech. The
most the Defendants concede is to admit that Defendant Brooks denied Plaintiff entry because
attendance was limited and Plaintiff was not on the guest list and yes, because based on
Plaintiffs prior behavior, he thought Plaintiff might cause a disruption. Doc. 135, Def. Br., 22.
Emphasis in original. As a threshold matter that ought to dispose of these arguments, this Court
has already held, as noted previously, that Defendants motives in excluding the Plaintiff from
meetings was because of his viewpoint, not because of his disruptiveness.
47
Beyond the Courts expressed views regarding Defendants motives, the responses to
Defendants Armentas and Brooks argument are these: First, it is clearly established law that a
citizen cannot be excluded from a public meeting, at all, much less on the basis of his
viewpoints. Second, there is plenty of evidence that Plaintiff was excluded from the meeting
because Defendants Brooks and Armenta disagreed with Plaintiffs point of view and were
retaliating against him because of his prior speech.
Defendant Brooks testimony is revealing (references are to page and line of his
deposition, the excerpts of which are Ex. 2): After Defendant Tellez told Defendant Brooks that
Plaintiff had come to the debate with a ticket, Defendant Tellez asked Defendant Brooks whether
he should be allowed in.
Q. And what did you say?
A. I said absolutely not.
Q. [Why?]
A. He poses a threat. He is disruptive. He wasnt invited. [144:16-21]
Q. And by threat do we agree that we are talking about a physical threat of some sort?
A. Not necessarily. It could be a physical threat.
Q. What other kind of threat would we be talking about?
A. Being disruptive. God only knows, pulling out the elephant mask again.
Q. So the other reason [for excluding MacQuigg] you described is that Mr. MacQuigg
might be disruptive at the debate?
A. Correct. [145: 8-18].
Q. [H]ad Mr. MacQuigg done anything at Eldorado High School [the debate location] to
be disruptive before you made the decision not to let him into the debate?
A. I dont recall specifically [145: 19-23]
.
48
Q. When was that invitation list compiled?

A. It was probably being worked on up until the very last minute of the debate. [147: 47]
After testifying that he added people to the guest list at the last minute, Brooks was
asked why he couldnt just put MacQuigg on the list? A: It is just a decision I made. [147: 245]. When asked why he knew that Plaintiffs name was not on the guest list, Defendant
Brookss response was: Because I had had enough to do with [the list]. I was directing the list
enough to know that he wasnt on the list. [148: 15-20].
Q. Are you aware that Mr. MacQuigg obtained his ticket from Ms. Janice Arnold-Jones?
A. I am.
Q. Who is she?
A. Right now she is a city councilor.
Q. At the time of the debate she was a state legislator?
A. Yes.
Q. If you had known that Ms. Arnold-Jones had given Mr. MacQuigg the ticket, would
that have changed your decision?
A. No.
Q. Why is that?
A. Because I know Janice Arnold-Jones has a relationship with MacQuigg. They meet
frequently and just because MacQuigg is a friend or acquaintance of Janis Arnold-Jones,
doesnt change my mind one bit about whether he should be admitted to the debate or
not. [148: 10-25, 149: 1-20]
Defendant Armenta provided a telling explanation of why the fact that Plaintiff had
obtained a ticket from Arnold-Jones, a legislator and city councilor, made no difference in
whether Plaintiff would be admitted:
Ms. Armenta testified: I understand they [MacQuigg and Arnold-Jones] are like-minded
people who get together in social circles. I have no idea what they are.
49
Q. By like minded you mean Mr. MacQuigg and Janice Arnold-Jones are like-minded
people; is that what you mean?
A. They seem to share some of the same political beliefs.
Q. By political beliefs, are you saying that in a partisan way?
A.
Criticism of APS.
Ex. 5, Armenta Dep., 154: 11-21. (Emphasis added.)

On the basis of the foregoing testimony, there is ample evidence that Defendants Brooks
and Armenta excluded Plaintiff, even though he had a ticket, based on his prior speech.
1. Defendant Robbins is not entitled to qualified immunity.
In their undisputed material facts at Nos. 26-32, Defendants allege that there is no
factual dispute that, during the Audit Committee meeting of August 25, 2010, the Plaintiff stood
in an area that was off limits to the public and resisted leaving, thereby disrupting the
meeting. Doc. 135, Defs Undisputed Fact No. 26. In addition, according to the Defendants, it
is undisputed that Plaintiffs associate Mark Bralley, did not turn off his recording equipment
when instructed, prior to an executive session and that, after the end of the executive session,
Mr. Bralley admitted that he had not done so and, as a consequence, both he and Plaintiff were
ejected. Doc. 135, Defs Undisputed Facts Nos. 26-29. Apparently in order to make Defendant
Robbins expulsion of Plaintiff for Mr. Bralleys conduct explicable, Defendants also claim it to
be undisputed that Mr. Bralley and Plaintiff were quite clearly operating as a team. Id., at No.
30. It is also supposedly undisputed that Plaintiff argued that he and Mr. Bralley were not
together and that he should not be ejected and that, as he was leaving, Plaintiff entered Mr.
Winters personal space and muttered something unintelligible. Id. at 31-32. Plaintiff disputes
all of these assertions. See Plaintiffs responses, supra at pp. 21-23 to the foregoing undisputed
facts.
50
As Plaintiff sets out in his responses to these uncontested facts, they are hardly
uncontested. First, Defendants claim that it is undisputed that Plaintiff and Mr. Bralley
positioned themselves in an off limits area is belied by the facts. There was no off limits
area and when Plaintiff and Mr. Bralley were asked to move they did so, and were thanked for
doing so. Ex. 12, MacQuigg Aff. of 11.7.14. Defendants claim in their undisputed fact No. 27
that the innocuous interchange between Defendant Robbins and Mr. Bralley disrupted the
meeting. But the recording of this event, at Ex. 13, lodging of exhibits, Disk B, at MacQuigg
001743, track 02, demonstrates that Defendant Robbins called the meeting to order only after
Mr. Bralley and Plaintiff, without resisting or complaining, complied with Defendant Robbinss
request to move to a different area of the room. Id. The recording also demonstrates with clarity
how the Defendants for purposes of this litigation are attempting to turn every interaction they
had with Plaintiff (even if it only involved someone else) into a disruption. See Ex. 18,
transcript of the disruption (during which Plaintiff says nothing at all, Mr. Bralley expresses
his desire to position himself where he is, but then promptly agrees to move, for which
Defendant Robbins thanks him and then calls the meeting to order). As to the issue of Mr.
Bralleys recording, the record shows that he made no recording during executive session and
that he and Plaintiff, while they are friends and sometimes attend meetings together, are not any
sort of a team.12 Finally, Plaintiff has testified, and the recording shows, that Defendant
12
Q. Do you know Mr. Mark Bralley?
A. Yes, I do.
Q. How do you know Mr. Bralley?
A. I know he -- I know of his prior experience with APD. He -- I believe he lives in my
district. He is a friend of Ched's, or associate of Ched's, or something along those lines.
He's showed up to several meetings.
Q. Do you associate the two together, and by that I mean Mr. MacQuigg and Mr. Bralley?
A. Nope.
Q. Nope, you don't?
A. No.
51
Esquivel ordered him to get out of the doorway and Plaintiff said Im out. Ex. 3, Esquivel
Dep., pp. 214, 216. The only disruption is of the Plaintiffs civil right to attend public meetings.
The transcript of the expulsion of the Plaintiff is, in fact, a text-book case of abusive conduct by
a public official and a level of imperiousness that is shameful. It is fully set forth at Paragraph
77 of Plaintiffs First Amended Complaint (Doc. 22).
Defendants attempt another point, based on the Courts conclusion that the whole
recording episode seems to have been on a misunderstanding by Defendant Robbins. Doc.
114, Order Granting Prelim. Inj., p. 11. According to Defendants, if the Court is correct that
Defendant Robbins was simply mistaken about the recording, and was mistaken about Plaintiffs
role in it, Defendant Robbins can hardly have had the state of mind to violate the Plaintiffs
civil rights. Doc. 135, Def. Br., p. 25. But the problem for Defendant Robbins is not just that his
version of the facts are disputed;; there is also evidence in the record to establish that Defendant
Robbins shared the same animosity toward Plaintiff that Defendant Esquivel and the other Board
members did. Defendant Robbins testified that he felt Plaintiff had an axe to grind and an
agenda (Ex. 6, Robbins Dep., p. 31: 5-10; 51: 1-8) and that Plaintiffs blog put Robbins in a
very bad light and was misrepresenting Defendant Robbinss votes and actions (Id., 53:1-10).
Six weeks before the Audit Committee meeting, Defendant Robbins emailed Plaintiff to say, I
believe you are not interested in the truth, just your version of it. I now join the other board
members in ceasing communications with you. (Id., p. 55:17-20). Defendant Robbins agreed
Q. And why is that?

A. I don't know them to have any type of business partnership. I think that they both write
blogs and that's about it.
Q. Do you consider Mr. Bralley to be sort of the picture-taking guy?
A. No, I think he writes a blog as well.
Ex. 3, Esquivel Dep., 78:22 79:16
52
that his decision to stop communicating with Plaintiff was in part because of the contents of
Plaintiffs blog. (Id., p. 56:13-24).
With evidence in the record that neither Plaintiff nor, for that matter, Mr. Bralley actually
disrupted the Audit Committee meeting, and with the evidence in the record establishing
Defendant Robbinss animosity toward Plaintiff because of his protected speech, including his
blog posts, the fact-finder could easily conclude that Defendant Robbins ejected Plaintiff for
those reasons. Indeed, the Court, in its opinion granting the preliminary injunction, agreed that
there was evidence that Defendant Robbins excluded Plaintiff out of animosity, not disruption.
Doc. 114, Order Granting Prelim. Inj., p. 11. The Court was apparently referring to Defendant
Robbins statement, after he ejected Plaintiff: Before I adjourn the meeting, this can go on the
record, I was informed right after the last, well after the Governor's debate, that Mr. Mac Quigg
has been making statements derogatory and has implied that he's never done anything wrong.
Ex. 19, Transcript of closing remarks by Defendant Robbins; Ex. 13, at Disk B, MacQuigg
001743, Track 04.
Defendant Robbinss final argument is that he did not do anything to violate the
Plaintiffs clearly established constitutional rights because Plaintiff did not speak at the meeting.
This, according to Defendant Robbins, demonstrates that he cannot have engaged in viewpoint
discrimination against Plaintiff. Doc. 135, Def. Br., p. 25-6. This argument, however, not only
ignores Defendant Robbinss statements regarding Plaintiffs prior derogatory remarks, but
ignores the right of a citizen not to be ejected from a public meeting unless he has caused an
actual disruption. See Norse at 976 (A disruption of a public meeting, to justify expulsion,
must be an actual disruption. Actual disruption means actual disruption. It does not mean
constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or
53
imaginary disruption.). Under clearly established law, Plaintiff had a right to attend a public
meeting unless his disruption was such as to justify his expulsion. Importantly, courts have
made it clear that a citizen cannot be excluded from a public meeting for a past disruption, even
if it actually had occurred, which, here, it had not. Citizens have both a state statutory right to
attend meetings that are open to the public and a federal constitutional right not to exclude
citizens from open meetings. NMSA 1978, 10-15-1, et seq.13 See, e.g., Shero v. City of Grove,
Oklahoma, 2006 WL 3196270, 4 (N.D. Okla., 2006): The Free Speech Clause bars
government interference with the flow of information through the closure of governmental
proceedings that historically have been open to the public. (citing Capital Cities Media, Inc. v.
Chester, 797 F.2d 1164, 1168 (3d Cir.1986)). Furthermore, courts have consistently recognized
a citizens liberty interest in being on public property and have condemned expulsion or banning
from public property without prior notice and an opportunity to be heard:
Courts have held that individuals have a liberty interest in being in a public place of their
choice. See City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67
(1999) (plurality opinion) ([I]t is apparent that an individual's decision to remain in a
public place of his choice is as much a part of his liberty as the freedom of movement
inside frontiers that is a part of our heritage (citations and internal quotation marks
omitted)); Kennedy v. City of Cincinnati, 595 F.3d 327, 336 (6th Cir.2010) (holding that
the plaintiff had a liberty interest to remain in a public place of his choice); Catron v.
City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir.2011) (holding that the plaintiffs
have a constitutionally protected liberty interest to be in parks or on other city lands of
their choosing that are open to the public generally).
13
In recognition of the fact that a representative government is dependent upon an informed electorate, it
is declared to be public policy of this state that all persons are entitled to the greatest possible information
regarding the affairs of government and the official acts of those officers and employees who represent
them. The formation of public policy or the conduct of business by vote shall not be conducted in closed
meeting. All meetings of any public body except the legislature and the courts shall be public
meetings, and all persons so desiring shall be permitted to attend and listen to the deliberations and
proceedings. Reasonable efforts shall be made to accommodate the use of audio and video
recording devices. (Emphasis added.)
54
Here, Plaintiff has an interest in being in City Hall during publically accessible hours and
to exercise his First Amendment rights. There is no indication that Plaintiff was afforded
a meaningful opportunity to be heard before the criminal trespass notice was issued that
deprived him of this interest.
Cuellar v. Bernard, 2013 WL 1290215, 4-5 (W.D. Tex.).
2. Defendants are not entitled to summary judgment on Plaintiffs due
process claim.
In Count IV of his complaint, the Plaintiff alleges that the Defendants violated his due
process rights by failing to provide Plaintiff with an opportunity to be heard at a meaningful
time and in a meaningful manner with respect to their ban on his attendance at and participation
in public meetings and that the Defendants deprived Plaintiff of his First Amendment rights
arbitrarily and capriciously. Doc. 22, First Amended Compl., s 138, 139.
To the extent that the Defendants address Plaintiffs due process claim, they simply say it
is derivative of Plaintiffs First Amendment claims (Doc. 135, Def. Br., p. 11) and that, in
order to prevail, Plaintiff must establish that he had a liberty or property interest in attending the
Boards meetings and that he did not afforded an appropriate level of process. (Id., p. 13).
Defendants then go on to argue that the Plaintiff has failed to demonstrate any personal
participation by Defendants Armenta, Brooks, Chavez and Robbins in any due process violation
and that those Defendants are entitled to summary judgment. Id.
The answer to Defendants argument that they did not violate Plaintiffs right to
procedural due process is two-fold. First, the Supreme Court and the Tenth Circuit have
recognized that liberty interests are frequently found in state law. A state creates a protected
liberty interest by placing substantive limitations on official discretion. PJ ex rel. Jensen v.
Wagner, 603 F.3d 1182, 1199 -1200 (10th Cir. 2010) (quoting Olim v. Wakinekona, 461 U.S.
238 (1983)). Plaintiffs liberty interest in attending board meetings is found in New Mexicos
55
Open Meetings Act. NMSA 1978, 10-15-1 A ( All meetings of any public body except the
legislature and the courts shall be public meetings, and all persons so desiring shall be permitted
to attend and listen to the deliberations and proceedings.). The Supreme Court has recognized
the right of citizens to attend public meetings, including school board meetings. See City of
Madison, Joint School Dist. No. 8 v. Wisconsin Employment Relations Commission, 429 U.S.
167, 97 S.Ct. 421 (U.S. Wisc. 1976) (members of public, even if they are employees of the
school, have a right to speak at school board meeting open to public). Furthermore, it has long
been established under the federal constitution that public officials cannot simply ban citizens
from public places without procedural due process. A Louisiana federal court put it this way:
The private interest, already discussed, is one of liberty and a basic freedom to
move about on publicly-owned property as any other citizen is legally able to do.
The risk of an erroneous deprivation of that interest would be unacceptably high if
police officers were given complete and unilateral discretion to determine which
citizens, without criminal charges of any kind being brought, may, for instance,
visit public parks, attend governmental meetings, conduct business at the
assessor's office or the Office of Motor Vehicles, visit polling stations on election
days, or go swimming at the community pool. This principle has been wellestablished. See generally Kennedy v. City of Cincinnati, 595 F.3d 327 (6th
Cir.2010); City of Chicago v. Morales, 527 U.S. 41, 54 (1999); Shuttlesworth v.
Birmingham, 382 U.S. 87, 86 (1965). See also Anthony v. State, 209 S.W.3d 296
(Tx.Ct.App.2006).
Vincent v. City of Sulphur, ____F.Supp. 2d _____, 2014 WL 2003193, 6 -7 (W.D.La.,2014).
(Emphasis added.)
The evidence discussed above establishes that Defendant Esquivel, in unilaterally
expelling Plaintiff from the November 4, 2009 regular Board meeting, Defendants Armenta and
Brooks in barring the Plaintiff from the August 19, 2010 District Relations Committee meeting
and debate, and Defendants Esquivel, Brooks and Tellez in banning Plaintiff from future
meetings by issuing the September 1, 2010 letter, provided the Plaintiff with no process at all and
violated clearly established law in doing so, even without consideration of the fact that they did
56
so because, as this Court has found, they disagreed with Plaintiffs viewpoint. All of these
events were public meetings on public property and, as such, Plaintiff had a right to be there
under New Mexicos Open Meetings Act, even if the Defendants had not evicted him as a
consequence of his exercise of his First Amendment right to speak from any viewpoint regarding
APS matters. The Supreme Court long ago made this clear.
[T]he freedom to loiter for innocent purposes is part of the liberty protected by
the Due Process Clause of the Fourteenth Amendment. We have expressly
identified this right to remove from one place to another according to
inclination as an attribute of personal liberty protected by the Constitution.
Indeed, it is apparent that an individual's decision to remain in a public place of
his choice is as much a part of his liberty as the freedom of movement inside
frontiers that is a part of our heritage[,]or the right to move to whatsoever
place one's own inclination may direct identified in Blackstone's Commentaries.
City of Chicago v. Morales, 527 U.S. 41, 53-54, 119 S.Ct. 1849 (1999) (footnotes and citations
omitted). As to whether these principles have been clearly established, there can be no doubt:
Any competent government official, particularly a police officer, should have
realized that he cannot deprive a person, who has not committed a crime or
violated some regulation, nor was likely to do so, of access to public grounds
without due process of law. Therefore, we hold that for purposes of defendants'
motion for summary judgment, Kennedy possessed a constitutionally-protected
liberty interest to use municipal property open to the public and that depriving
him of his liberty interest, without procedural due process, constituted a violation
of a clearly established constitutional right.
Kennedy v. City Of Cincinnati, 595 F.3d 327, 337 -338 (6th Cir.2010). See also, Cuellar, supra,
at id ([N]o indication that Plaintiff was afforded a meaningful opportunity to be heard before
being expelled from public building.
The foregoing authorities establish that in 2010 it was clearly-established law that the
Defendants could not expel the Plaintiff from future public meetings of the APS Board without
notice and a hearing.
57
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court deny the
Defendants motion for summary judgment in all respects.
Respectfully submitted,
FREEDMAN BOYD HOLLANDER
GOLDBERG URIAS & WARD, P.A.
/s/ John W. Boyd and Vincent J. Ward
John W. Boyd
Vincent J. Ward
20 First Plaza, NW, Suite 700
Albuquerque, NM 87102
(505) 842-9960
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I CERTIFY that on the 12th day of November, 2014, I filed the foregoing electronically
through the CM/ECF system, which caused the following parties or counsel of record to be
served by electronic means, as more fully reflected on the Notice of Electronic Filing.
/s/ John W. Boyd

John W. Boyd
58

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Case 1:12-cv-01137-MCA-SCY Document 139 Filed 11/12/14 Page 1 of 58

UNITED STATES DISTRICT COURT

CHARLES CHED MACQUIGG,

PLAINTIFFS RESPONSE IN OPPOSITION TO CERTAIN DEFENDANTS

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as to particular Defendants, there is insufficient evidence of personal involvement in one or

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Q. Do you attend most meetings?

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RESPONSE TO DEFENDANTS STATEMENT OF UNDISPUTED

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out of his employment. Undisputed/Irrelevant.

meetings, including APS Board meetings. Undisputed.

Plaintiff professes to be a devotee of Character Counts - having referred to

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50 to 100 different meetings. Ex. A, at 80:15-23. Undisputed/Immaterial/Misleading. As the

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In an effort to address Plaintiff's conduct that they viewed as disruptive,

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On multiple occasions during Board meetings, outside of the public comment

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that had been issued to another person. Ex. A, at 205: 11-206:8.

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When Superintendent Brooks expressed his discomfort, the Chairman of the

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operating as a team. Ex. A, at 53:22-54:12,100:19-102:1; Ex. H, at 205:1-5; Ex. J, at 102,146-48.

acting as if he and Mr. Bralley were not together. Ex. J, at 154:10-22,171:5-172:6.

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possibility of restricting Plaintiff's attendance at meetings pending a discussion about his

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In providing advice regarding the issuance of the September 1, 2010 letter,

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letter. Ex. E, at 75:10-76:19, 86-87. Admitted/Immaterial. Plaintiff admits that Defendant

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Applicable Legal Standards.

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As to the one Issue Regarding Defendant Brooks Participation in the

As to the expulsion of Plaintiff from the November 4, 2009 Board meeting:

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As to the September 1, 2010 letter to Plaintiff regarding future attendance at Board

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No Defendant is Entitled to Qualified Immunity.

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