The opinion of the court was delivered by: Robert E. Payne United States District Judge
This matter is before the Court on the Revised Motion for Summary Judgment filed by Defendants Daniel Gecker, Sherman Litton, and the Chesterfield County Planning Commission (Docket No. 28), and the Motion for Partial Summary Judgment filed by the Plaintiff, Robert Steinburg (Docket No. 9). For the reasons set forth below, the Plaintiff's motion is denied, and the Defendants' motion is granted in part.
I. Procedural Posture And Statement Of Facts
Pursuant to 42 U.S.C. § 1983, Robert Steinburg filed this action against the Chesterfield County Planning Commission ("Commission"), Commission Chairman Sherman Litton in his official capacity, and Commission member Daniel Gecker in his official capacity. Steinburg alleges that the Defendants deprived him of the right to free speech guaranteed by the First Amendment to the United States Constitution during a Commission meeting held on October 18, 2005. Steinburg and the Defendants have each moved for summary judgment.
The incident that led to this action was recorded on videotape, so the actual conduct that forms the basis for Steinberg's case is not subject to dispute. On October 18, 2005, Steinburg attended a regular meeting of the Commission, during which members of the public were afforded the opportunity to express their opinions on zoning issues on the Commission's agenda. One item on the agenda was a proposed zoning change related to the Tarrington Subdivision. When that agenda item was called, an attorney representing Tarrington's developers, William Shewmake, asked to defer the rezoning hearing for 30 days.*fn1
After Shewmake made his request, Litton, Chairman of the Commission, opened the floor for public comment on the deferral request. Litton made it clear that the deferral was the only topic open for discussion at that point in the meeting. Three citizens in the audience took advantage of the opportunity to speak:
Steinburg, who spoke third, and two other community members who spoke before him. Just before the first speaker began her presentation, Litton reiterated that discussion was to be "just on the deferral," and not on other topics.
Although the first speaker referred to the deferral throughout her presentation, most of her comments addressed safety issues related to the proposed rezoning request. Specifically, she feared that development undertaken pursuant to the proposed rezoning would occur atop a dangerous network of abandoned mine shafts. Notwithstanding that the first speaker did not confine her comments to the deferral request, the Commission allowed her to make the substantive presentation without interruption, and one Commission member even asked her several safety-related, substantive questions upon conclusion of her prepared remarks.
The second speaker, like the first, mentioned the deferral in passing, but also made a lengthy substantive presentation about safety issues related to the proposed rezoning. Midway through the second speaker's presentation, Gecker, a member of the Commission, interrupted the speaker to ask whether or not the speaker was in favor of the deferral. Litton, the Chairman, also interjected, reminding the speaker that he would have an opportunity to present substantive remarks at a later date (apparently assuming that the hearing would in fact be deferred). After Litton's reminder, the second speaker promised to "shut up" after just a few more substantive comments. No Commission member objected, and the second speaker continued his substantive remarks for a short while before finally finishing.
After the second speaker finished, Gecker recalled to the podium Shewmake, the Tarrington developers' attorney, and asked him to address the safety concerns expressed by the previous two speakers. Gecker acknowledged that he was going to question Shewmake about matters unrelated to the deferral, but expressed the view that he was entitled to do so because Litton had allowed the previous two speakers to stray off topic and to address matters of substance respecting safety. Gecker then proceeded to ask Shewmake questions calculated to provide responses to the safety concerns raised by the first two speakers.
When Gecker finished questioning Shewmake, Steinburg came to the podium. What follows is a partial transcript of the exchange between Steinburg and members of the Commission. The transcript begins after Steinburg made several introductory comments unrelated to the deferral:
MR: STEINBURG: Now I understand that you're not making a decision as it relates to this particular issue this evening, but I think it is very, very important to apprise you, if you are not already aware, that this is an issue that people - it's a very volatile issue. I have lived in this corridor for thirty years, and I can tell you I haven't seen people this hot about anything like this, ever. This is a very serious issue.
One of the things that troubles me when some of these things are being presented this evening is a lot of bandying about, back and forth, by some of you, who don't seem to be paying attention, or else are talking about something that perhaps might not even be related, and I can tell you that perception is reality in the eyes of many. What you are talking about, I have no idea - Mr. Gecker, you in particular, leaning over and saying this, that, and the other thing - but I can tell you from a perception standpoint from someone who is concerned, like myself and others in this room, it's not very flattering, believe me.
MR. GECKER: Mr. Steinburg, abusing this podium is not very flattering.
MR. STEINBURG: That is not abusing the podium, Sir. I am telling you what I observed. I am a citizen. I am representing 600 households here at their bequest [sic] tonight, and you will listen to what I am saying, Sir.
MR. GECKER: No, Sir, you will not talk to me that way. I am not going to listen to what you've got to say on a deferral motion when you come and speak to something other than the deferral. The Old Gun Road Civic Association -
MR. STEINBURG: That is with regard to deferral, Sir -
MR. GECKER: - supported the Tarrington -
MR. STEINBURG: Mr. Gecker, would you please give me the right to speak? Who ...