Plaintiff brought a §1983 claim against the Town of Tusten and the Town’s Code Enforcement Officer alleging a violation of his First and Fourteenth Amendment rights after the Town sent a letter instructing him to remove the pro-fracking sign posted on his garage. Specifically, the plaintiff alleged that the defendants: (1) selectively enforced the Sign Ordinance against him in violation of the Equal Protection Clause, (2) enforced the Sign Ordinance in retaliation for exercising his First Amendment righs, and (3) discriminated against him on the basis of the viewpoint he expressed on fracking. The Town quickly made a motion to dismiss while the Code Enforcement Officer asserted qualified immunity, both of which were dismissed by the District Court for the Southern District of New York.

Examining the plaintiff’s claims, the Court found the plaintiff did have a constitutional right to advocate for a controversial viewpoint on political topics, as well as a right to publicly criticize Town officials. It then ruled that for purposes of a motion to dismiss, evidence that discrimination could have been a “motivating factor” was sufficient to defeat the motion. Paired with two citations for violating the Sign Ordinance as evidence of a “chilling effect” on speech, the Court held that the plaintiffs claim could proceed.

Finally, the Code Enforcement Officer was not entitled to qualified immunity because qualified immunity is conditioned upon objectively reasonable conduct, a standard which may or may not be met based upon whether retaliation was found to have played a substantial part in the Officer’s actions. 

The case was Lang v Town of Tusten, 2015 WL 5460110 (S.D.N.Y.)