‘The fundamental injustice is retaliating against somebody for their speech’

Noah Petersen, the Newton resident who was arrested two times in 2022 after criticizing government officials during the public comment portion of city council meetings, has filed a federal lawsuit against the city, the mayor and the police chief, saying his First, Fourth and Fourteenth Amendment rights were violated.

The Institute for Justice, a nonprofit, public interest law firm, announced on Thursday, Oct. 12 it has teamed up with Petersen, 23, to seek compensatory and punitive damages against the City of Newton and its officials. According to the complaint filed by Petersen’s attorneys, he demands a jury trial.

Brian Morris, an attorney from the Institute for Justice, said the mayor and the police chief violated Petersen’s constitutional rights by retaliating against him at past council meetings. The litigation team also allege the City of Newton violated his rights through its policies, particularly a rule prohibiting derogatory comments.

“We’re also bringing what’s called a facial challenge to that saying that rule violates the Constitution because it discriminates based on the content of someone’s speech or their viewpoint, which the U.S. Supreme Court says you can’t do,” Morris said in an interview with Newton News.

The legal team representing Petersen also argues the city, mayor Mike Hansen and police chief Rob Burdess violated the Fourth Amendment by arresting their client without probable cause, saying that calmly criticizing the government during a public comment period is not illegal and is, in fact, protected speech.

Lastly, Petersen’s Fourteenth Amendment rights, specifically the Equal Protection Clause, were violated by the city and its officials because the city lacked any legitimate reason to single him out for his public comments, the Institute for Justice says. Other residents who criticized the city were not arrested.

“Our theory on that is even at that Oct. 3 meeting all the landlords were up in arms over the rental inspectors,” he said. “…All these people were upset about the rental inspections and called the rental inspectors some harsh words and had pretty negative things to say. The mayor doesn’t do anything to that group.”

However, when Petersen approached the podium at the same meeting and began criticizing public officials, the mayor then decided to enforce the rule.

On both occasions, Petersen was arrested for disorderly conduct. He was later found not guilty on the first charge. The city then dropped the second charge.

“The fundamental injustice (for this case) is retaliating against somebody for their speech,” Morris said.

Petersen is arrested after speaking against the police department

On Oct. 3, 2022, Petersen spoke during citizen participation and called for the city to defund the Newton Police Department, saying it is a “violent, civil and human rights violating organization” that does not make the community safer. He also claimed the department is “pro-domestic abuse.”

The latter comment referenced the controversial traffic stop of college studentTayvin Galanakis, who was arrested after blowing a 0.00 on a breathalyzer test. The Newton police officer suspected Galanakis of driving drunk, but after the test showed no alcohol he suspected him of being under the influence of drugs.

Frustrated by the experience, Galanakis refused the officer’s offer to take a drug test at the police station and was placed in handcuffs. Tests later showed no evidence of drug use. Galanakis shared his experience, which went viral and led to many looking up the officer on Iowa Courts Online.

It was there they found a protective order placed against officer Nathan Winters by an ex-girlfriend. Although no criminal charges were filed, the order restrains Winters from committing any further acts of abuse or threats of abuse, and it was modified to allow him to conduct official police business, including carrying a gun.

Petersen spoke out against this incident, which was highly publicized on social media and several news outlets.

The mayor cut off Petersen from speaking and called the police chief to escort him out of the council chambers. Despite his protests that the city council was violating his constitutional rights, he was placed in handcuffs, escorted from the chambers and taken to jail.

On Oct. 24, 2022, Petersen returned to the council meeting and was cut off again by the mayor after calling him and the police chief fascists and that they should be removed from power. Hansen told Petersen not to defame the police chief and continue on. Petersen persisted. The mayor slammed his gavel again.

Hansen told Petersen his comments were over and that the rules of the city council clearly state he cannot make derogatory comments about any individual.

“Including an employee of the City of Newton. Seize your comments. Sit down,” Hansen said before suspending the council meeting. Newton News was viewing the stream through the city’s website, at which point it went offline when the mayor ordered the suspension. The council meeting resumed not long after.

The Institute for Justice’s litigation team concedes that while the city is allowed to put time, manner and place restrictions on speech, Morris said rules have to be content-neutral, meaning rules cannot restrict the substance or message of public comments to being only positive or only negative.

Court finds Petersen not guilty, says city’s rules violate U.S. Constitution

In February 2023, the court found Petersen not guilty of disorderly conduct, saying the City of Newton did not meet its burden of proof beyond a reasonable doubt that disorderly conduct occurred. The court also found Petersen’s actions and statements did not exceed any authority he can claim under free speech.

While some may not agree with the content of his comments, the court found the statements made by Petersen were not derogatory nor about any individual.

“In the event the statements could be found ‘derogatory’ or a comment about an ‘individual’ as used in the city council’s rules, the court finds these terms vague and overbroad,” court documents stated. “As applied in this particular instance, the Newton City Council rule is violative of the First Amendment.”

Furthermore, the court found that even if Petersen did identify an individual at the first council meeting, it would be difficult if not impossible for any concerned citizen to comment regarding policies or provisions of city services without referencing an official city position to some extent.

By definition, the court found the term “derogatory” cannot be considered viewpoint-neutral as the word itself implies a negative or low opinion. Court documents state some derogatory statements can be disruptive and therefore can cause interference or disruption with a meeting while some would not.

Petersen’s actions were not considered boisterous or disruptive such that they impaired the conduct of the meeting.

Shortly after Petersen was found not guilty of the first case, the city dropped the charges for the second case of disorderly conduct. Then the city changed its meeting rules. Specifically, it removed the rule prohibiting derogatory statements or comments about any individual.

The mayor stressed to Newton News at the time it was not a knee-jerk reaction to the ruling, noting it was inspired by past workshops and a conference.

The new rules state: “Elected officials will take comments into consideration; however, this time is not intended for a discussion or entering into a dialogue. Elected officials and city staff will not answer questions or debate a citizen during the citizen participation portion of the meeting.”

Morris said since the council changed its rules, the city might argue the complaints regarding the citizen participation policy are moot. But the rule was still in place when Petersen was arrested both times and could still be considered unconstitutional. There is also nothing stopping council from changing it back.

“There is also nothing preventing the mayor from enforcing it even though it’s not in writing anymore,” he said. “In my mind it’s almost worse. What cities will do is if they have a policy that’s on its face unconstitutional, they’ll change it and make it a little bit more vague and then say, ‘Oh look! It’s not unconstitutional anymore!’”

Institute of Justice takes Petersen’s case to federal court

With the complaint now officially filed to the U.S. District Court for the Southern District of Iowa Central Division, Petersen’s legal team will have a sheriff to serve the city, the mayor and the police chief all the documents. From there, Morris said the city has a month to respond. The city has two ways to respond.

1. The city can answer the complaint and either deny or admit everything;

2. Or the city can file a motion to dismiss, which is the more probable outcome.

Morris told Newton News there are a number of immunity doctrines for public officials, which could pose a challenge. From what Morris has gathered in other free speech cases, he expects the city will argue it did not arrest Petersen because of what he said but rather his conduct and his refusal to leave.

“From our position, you told him to leave because you didn’t like what he had to say,” Morris said. “You told him to leave because of his speech. You can’t hide behind that. So we’ll probably have that fight at the beginning of whether or not they are entitled to immunity.”

Although he did not want to make any solid predictions about the case, Morris said it could take about a year to complete. It all depends on the city’s response.

At the time the lawsuit was filed, the Institute for Justice launched a video titled “IRONY: Citizen Arrested for Calling Mayor ‘Fascist’ at Council Meeting.” In it, Petersen and Morris defend the case. Near the end, Morris said, “You, like Noah, have the right to speak out against your government without fear or retaliation.”

In a statement that Petersen also provided to the Des Moines Register, he said being arrested twice at council meetings has really discouraged him from even engaging with public officials. He referenced the council’s recent discussions with landlords who criticized the city’s inspection programs without retaliation.

“Since I’m not a wealthy landlord it’s OK to silence and ignore my voice,” he said, explaining that he is pursuing this federal lawsuit to stand up for everyone’s right to criticize their government. “…No one should have to fear being jailed for exercising their rights in a democracy.”

Petersen added, “I hope this case can set a precedent to strike down unconstitutional rules — like Newton had — across Iowa and the rest of the country. To set a precedent that it’s not okay for the state to arrest its critics.”

The City of Newton did not have a comment about the lawsuit at this time.