PHILADELPHIA (CN) — Hit with a $750,000 verdict in favor of a man whom officers tackled and Tasered at a sheriff’s sale, Philadelphia fought at the Third Circuit on Monday for a reversal.
The melee erupted back on Jan. 4, 2011. James Porter, his wife, his mother and his brother all attended an auction of a certain building whose foreclosure the couple was contesting based on a $2.8 million mortgage held by Porter’s wife.
When the auction began without a promised announcement by the bank’s attorney about the litigation, Porter followed his lawyer’s advice to make the announcement himself.
Porter notes in his appellate brief that sheriff’s officers apprehended him so violently for this attempt that the police intake facility wouldn’t even admit him, sending him instead to a hospital.
The city later prosecuted Porter unsuccessfully for terrorist threats and other charges, and Porter sued when he was acquitted on all but a resisting-arrest charge.
Though the city argued that it was properly enforcing a policy against public comments at sheriff’s sales, a federal jury found that the city violated Porter’s rights.
Philadelphia is appealing now to have the Third Circuit uphold its no-comment policy as reasonable and viewpoint neutral.
“The point is that no comments are allowed,” Craig Gottlieb, with the Philadelphia Law Department, said this morning at oral arguments.
U.S. Circuit Judge Midge Rendell pushed back on this, however, noting that the city had allowed others in the past to make comments at sheriff’s sales.
“It seems like the city was singling him out,” Rendell said.
Gottlieb disagreed, arguing that the sheriff’s officers ensure that all who speak out of turn are asked to sit down or are pulled aside.
“He was singled out because he was speaking,” Gottlieb said of Porter.
As to viewpoint neutrality, Gottlieb emphasized that Porter’s statement did not express a viewpoint but factual information.
Porter’s attorney Kimberly Smith Rivera struggled meanwhile to make the case that Porter’s special interest in the property undercuts this. Judge Rendell appeared unsure how that can classify as a viewpoint.
“Aren’t you confusing a viewpoint for anything someone wants to say,” Rendell asked Rivera.
Rivera, an attorney with McGlinchey Stafford, urged the panel to affirm.
“Because one person was appointed to enforce the rule it’s on its face unreasonable,” said Rivera.
U.S. Circuit Judges Theodore McKee and David Porter sat on the panel as well.