Philadelphia Doesn’t Owe Man Tackled & Tased at Foreclosure Sale

Google Street View image of 1039-55 Frankford Avenue in Philadelphia. (Image via Courthouse News)

PHILADELPHIA (CN) — Overturning a nearly million-dollar verdict given to a man who was tackled and Tased at a sheriff’s sale, the Third Circuit ruled Friday that Philadelphia’s rules against announcements at such auctions are not unconstitutional.

James Porter had flown from Arkansas to the auction on the advice of his lawyer in 2011 — wanting to ensure that the sheriff would not sell a Philadelphia building in foreclosure at 1039-55 Frankford Avenue without disclosing that the $2.8 million mortgage held by his wife had first priority.

When no such announcement was made, Porter stood from his chair and attempted to make the announcement himself, reading a list of points his attorney had advised him to make.

As Porter noted in his appellate brief last year, sheriff’s officers apprehended him so violently when he stood that he had to be hospitalized.

Philadelphia later prosecuted Porter 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 and awarded him $750,000 in damags.

Philadelphia appealed on the basis that its prohibition against comments at sheriff’s auctions is reasonable and viewpoint neutral.

The Third Circuit, which held oral arguments on the case last July in Philadelphia, reversed Porter’s award Friday.

“As the government entity charged with conducting sheriff’s sales, the Sheriff’s Office has the right to limit speech in accordance with the First Amendment principles applicable to nonpublic forums,” U.S. Circuit Judge Theodore McKee wrote for the three-judge panel. 

Further, McKee noted that the policy against public comments at such sales is appropriate, and vital for keeping things organized.

“We conclude that the Sheriff’s Office’s policy prohibiting comments during the sheriff’s sale is a reasonable, viewpoint neutral speech restriction aimed at protecting the Sheriff’s Office’s ability to sell hundreds of foreclosed properties in a single auction,” the 28-page opinion states. “An auction requires a clear and direct line of communication between bidders and the auctioneer in order to complete each sale, especially in a room with hundreds of people.” 

Porter likewise failed to sway the court that he was singled out from speaking based on viewpoint discrimination.

“The city’s policy in this case is clear and uncontested: no comments are allowed,” wrote McKee, a Clinton nominee. “That prohibition applies to all comments, regardless of the viewpoint that is expressed.”

U.S. Circuit Judges Midge Rendell and David Porter, Clinton and Trump nominees, concurred with McKee.

McGlinchey Stafford attorney Kimberly Smith Rivera, representing Porter, did not immediately respond to email seeking comment. Philadelphia attorney Craig Gottlieb also did not respond to a request for comment.

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