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7th Flashback: Halloween, Free Speech Rights, and Qualified Immunity

By Robyn Hagan Cain on October 27, 2011 4:05 PM

In honor of Halloween, we're looking at a Seventh Circuit Court of Appeals blast-from-the-past that examines Halloween decorations, free speech rights, and the legal consequences at the cross-section of the two.

After Hurricane Katrina, there was an evacuee who parked his camper outside of our house for two months. Neighborhood rules prohibited recreational vehicle parking of that variety on the street, but no one wanted to report him because he had just lost his home in the storm.

Perhaps if he had left his camper on the street for two years, tempers would have flared.

Jeffrey Purtell would know. After parking his 38-foot motor home in front of his Bloomingdale, Ill. home for two years, his neighbors "petitioned the village to ban parking vehicles in front of residences," reports the Chicago-Tribune.

Purtell responded by creating a Halloween display at his house weeks later, featuring large, satirical tombstones describing his neighbors in unflattering terms.

The Purtells' neighbors were upset by the tombstone display, and several called the Bloomingdale Police Department to report that they felt intimidated by it and wanted it removed. Approximately two weeks before Halloween, police officers attempted to persuade Purtell to take down the tombstones; he refused, but agreed to cover the names with duct tape.

The tombstones remained in the week after Halloween, and the neighbors again called the police out when the duct tape fell off some of the neigbors' names. Bob Lesner, a neighbor whose wife was featured on a tombstone, walked onto Purtell's yard while the police were trying to resolve the issue, and eventually "chest-butted" Purtell in a heated argument.

Officer Bruce Mason told Purtell that he would be arrested if he didn't remove the tombstones. Purtell refused, but changed his mind after being handcuffed. The display was immediately removed.

Purtell then filed a civil rights lawsuit against Officer Mason, claiming that Mason violated his free speech rights.

The Seventh Circuit Court of Appeals found that the case should not have advanced to trial because Officer Mason was protected by qualified immunity.

While Mason infringed upon Purtell's free speech rights by ordering him to remove the display, the court found that it was a reasonable mistake: Mason, presented with flared tempers and chest-butting, thought he had encountered tombstone-inscribed fighting words.

After resolving the legal issues, the Seventh Circuit Court of Appeals concluded its opinion by admonishing attorneys that this case, while not frivolous, was a waste of time and resources. Before you file suit on behalf of a client involved in a holiday decorations dispute, you may want to consider whether such a suit will adversely affect the way the court perceives you, and your clients, in subsequent matters.

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