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When a public official files a restraining order for public comments is that a dangerous precedent to free speech?

The Otero County Commission the last several years has been the albatross of New Mexico in driving a media circus of controversy. Most of those controversies were driven by Couy Griffin while holding office of County Commissioner District 2, but the actions of the commission related to a variety of issues have raised questions and multiple court cases, a few of which have risen to the attention of the New Mexico Supreme Court and may eventually land on the docket of the US Supreme Court.

With the removal of Mr. Griffin from office, some thought civility and common sense would come back to the commission. The appointment of Stephanie DuBois by the Governor to fill Mr. Griffin’s position led to more controversy being so close to the general election.

The County Commission meeting of November 10th became a true circus of hostility and the meeting fell into disarray that again garnered national media attention to Otero County New Mexico and not in a positive light.

During that meeting, during public comments Couy Griffin went on a verbal rampage disparaging Ms. Dubois and attacking her role in the office she was appointed to calling her “an eight time looser.” Ms. Dubois felt she was verbally assaulted and not protected by the County Commission Chair nor the Sherrif is what she has stated in public comments.

Ms. Dubois told KOAT Action News; “I’m just fearful. I’m 77 years old. I don’t own a gun. I don’t have any way [to protect myself]. And for me, that thing in the room was frightening,”

According to a filing at the Otero County Courthouse, Couy Griffin is facing a restraining order from Stephanie Dubois. She’s the current county commissioner till December 31st via the appointment.

Dubois said she made the order after an incident that happened during a county commission meeting on Nov. 10. During the Thursday meeting, Griffin made a few comments towards Dubois during a public comment period. An argument then ensued between both parties, involving shouts and harsh words.

Dubois said she was terrified over what happened and still fears for her life. “I’m just fearful. I’m 77 years old,” she said. “It was very scary that nobody protected me.”

However, the verbal quarrel wasn’t the only incident that happened to Dubois. She claims she felt threatened the day the commission certified the election results when Couy was on horseback on the public street carrying a flag that said, “we the people.”

She told KOAT “Couy is on a horse, hiding behind a fire truck with a big flagpole that said, ‘We the people.’ All of a sudden, I see the flagpole moving and he comes down and puts himself between me and my car,” she said. After the two moments, the 77-year-old decided to file a restraining order, to ensure her safety and protection.

These statements to KOAT and statements she has given prior and then yesterday to radio personality Anthony Lucero of KALH radio raise questions as to the timing of events, were they as aggressive as perceived, or were they just an exercise of free speech?

Free speech can sometimes be intimidating when on the receiving end as a public servant. But unless an actual threat has been made it is hard to define what is meant as rhetoric and what is an actual threat to a public servant.

The restraining order was filed prior to the incident on horseback. There seems to be conflicting dialog and conflicting interpretations as to what occurred via the horseback incident.

Ms. Dubois did a post on November 12th that described the incident and then the description to Anthony Lucero at KALH and the description of that incident to KOAT television News seems to differ a bit.

To KALH she mentioned a deputy sheriff asked her where she was parked and agreed to walk her to her car. She then said during the interview with Mr. Lucero that “the deputy was present when Mr. Griffin appeared from behind a parked firetruck on horseback and on the public street. She claimed to Mr. Lucero in an interview yesterday that the deputy, “only went so far with me and I ended up going to the car by myself.“

Did Ms. Dubois feel intimidated, one could certainly see how she could feel intimidated by Mr. Griffin, but the question posed is was her safety at risk? It’s hard to imagine a deputy sheriff would have exposed Ms. Dubois to harm due to the personal liability and the liability to the department. Further based on experience with law enforcement in Otero County most are very responsible, professional and take their oath of office to ensure public safety seriously. I recently personally had an incident on the street with a gentleman that threatened me, the deputy at the courthouse was very protective of me and ensured my public safety from the threat. Based on my experience with the Otero County Sheriff’s Department and with the local Alamogordo Police Department it seems at odds that a sworn officer would allow Ms. Dubois to be at risk.

Even at the crazed County Commission meeting of November 10th, 2022, at 1:15.43 of the video one can witness Sherrif Black removing the microphone from Mr. Griffin and ordering the room vacated to calm the room. The Chairwoman ordered the room closed for 15 minutes for a cooling off period.

While the tone of the conversation was not “civil dialog” and was harsh and aggressive in tone, one is hard pressed to see a threat of harm to those seated on the commission dais.

Ms. Dubois via her filing for the restraining order claims, “I am an elderly woman who feels she has no protection from law enforcement.”

While her assertion that “Mr. Griffin shows a great deal of anger towards the party” she belongs is factual, the assertion that she feels she has no protection from law enforcement seems counter intuitive to the culture of law enforcement.

The filing of a restraining order is a serious action by a public official on a constituent.

The issue locally is such a hot potato that local judges recused themselves from presiding over the hearing scheduled for December 5th, 2022. The state Supreme Court appointed the Honorable Shannon Murdock to preside.

Judge Murdock has an interesting job in hearing this case. Not often does a public official file a restraining order on a member of the public due to public comments.

There is precedent in California for such a case…

Can a city restrict the conduct of a self-described civic-minded individual, with a history of flamboyant speech and dramatic behavior in his communications with the city, without running afoul of free speech rights?

In City of San Jose v. William Garbett, filed on November 24, 2010, the Sixth Appellate District Court of Appeal says yes, when the conduct meets the conditions for an injunction under Code of Civil Procedure section 527.8.

Section 527.8, also known as the Workplace Violence Safety Act, allows any employer to seek a temporary restraining order and injunction on behalf of an employee who “has suffered unlawful violence or a credible threat of violence from any individual” at the workplace. For purposes of the statute, a city is an “employer.” (Code Civ. Proc. § 527.8(d).) “Unlawful violence” is defined as “any assault or battery or stalking as prohibited in Section 646.9 of the Penal Code, …” (§ 527.8(b)(1).)

“Credible threat of violence” is defined as “a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.” (§ 527.8(b)(2).)

To obtain an injunction, an employer must establish, by clear and convincing evidence, not only that the defendant engaged in unlawful conduct within the meaning of the statute, but also that great or irreparable harm would result to the employee if the injunction were not issued due to the reasonable probability unlawful violence will occur in the future. (Code Civ. Proc. § 527.8(f); Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 335.)

Interestingly in the case it was not the elected or appointed individual seeking the restraining order but the city applying for the restraining order to protect its paid personnel. In the case of Ms. Dubois, she is paid by Otero County thus the county is the one that is tasked with workplace protection.

In Garbett, the City of San Jose sought 14 injunctions (and temporary restraining orders) on behalf of the city’s deputy city clerk, the mayor and city council. The city submitted evidence that the appellant, William Garbett, age 70, had a long history of grievances with the city going back many years, and that the appellant made a “credible threat of violence” toward a deputy city clerk, and other city employees under section 527.8(b)(2). In addition to evidence that the appellant regularly visited the city clerk’s office and attended city council meetings, expressed fanciful ideas, appeared agitated or angry or resentful toward the city, and had inappropriate verbal or physical outbursts, there was additional evidence that this antagonism escalated. Specifically, there was evidence that the appellant threatened a deputy city clerk by stating that his only recourse to change policy in San Jose was to act similar to that of one angry man in Kirkwood, Missouri, who a few months prior had shot and killed several people at Kirkwood City Hall. The deputy clerk, who understood the reference, reportedly felt threatened and feared for her safety and the safety of the mayor and city council. After she reported the event, the city searched the appellant when he attempted to enter council chambers and implemented extra monitoring procedures or security measures.

The trial judge granted the city’s initial requests for interim restraining orders. Following an evidentiary hearing – which included the testimony of several witnesses who had previous interactions with the appellant and two expert witnesses – the trial judge also issued 14 injunctions restricting the conduct of the appellant toward the deputy city clerk, mayor, and council.

Each injunction included orders requiring the appellant to stay 300 yards from the protected individuals and City Hall. The injunction also included specified exceptions which would allow appellant to attend public City Council. Those exceptions included requiring appellant to enter City Hall through a specified entrance, be subject to a search before entering the City Council chambers, sit in a specific row, use a particular stairway during meetings, and communicate with the City Clerk’s office by mail or proxy.

Appellant sought review of the injunctions contending, in part, that the orders restricting his conduct and movements violated his rights to free speech under the First Amendment to the United States Constitution and the California Constitution and represented the city’s attempt to “curtail what amounts to annoying behavior.”

The Court of Appeal affirmed all 14 injunctions including the restrictions on the appellant’s movements. The Court disagreed with the appellant’s First Amendment arguments, relying on California Supreme Court precedent establishing the right of the state to penalize willful threats to perform illegal acts, even those consisting of pure speech. In re M.S. (1995) 10 Cal.4th 698, 710.) The Court also found substantial evidence to support the court’s factual findings on the requisite elements of section 527.8, namely that the appellant had expressed a credible threat of violence toward city employees that was not constitutionally protected speech; that this conduct caused the city employees to experience fear; and a likelihood of future harm.

When the appellant protested that he did not intend to threaten anyone, the Court dismissed this argument, concluding that the defendant’s subjective intent is not required for the conduct to be deemed a credible threat under the current definition found in section 527.8(b)(2).

Appellant further challenged the injunctions on overbreadth grounds, taking issue with the limitations on his access to the City Hall building and his movements within the council chambers. The Court nevertheless upheld these restrictions, deferring to the trial judge’s view of the evidence and factual findings on the requisite elements of section 527.8, and the lower court’s considerable discretion to fashion orders aimed at preventing harm of the nature suggested by the threats.

The Garbett case establishes good law for public entities which seek to curtail repeat offenders or conduct that escalates or develops into what has been classified as more than merely annoying or unprotected speech.

The question in the case of Ms. Dubois verses Couy Griffin, does this case escalate to the level that requires such action? Did Ms. Dubois ask the County Attorney for assistance and protection?

Based on court precedent should the county be filing on behalf of Ms. Dubois or is she correct in filing a restraining order on her own?

As usual, this will be another interesting case that will draw much attention of the media both locally and on the national level. The judge in the case is in a no-win position, as whatever the outcome, there will be an outcry of criticism. Depending upon the ruling, this is yet another case, that could end up in appeal and continue to drive negative headlines to Otero County New Mexico.

Sadly, this again is another black eye to the reputation of Otero County and Alamogordo and does not show the best and the brightest of the region. This is another incident that makes the region look like the wild west verses an area of sophistication and a place that is conducive as a good business environment.

When a public official files a restraining order for public comments is that a dangerous precedent to free speech?

Based upon the case outlined above the answer is complicated at best, as the erratic individual was able to continue in his quest of expression but was required to comply with additional security measures to ensure the safety of public servants.

Otero County politics is always entertaining as we have said before. In the new year may we get past entertainment and move to a zone of civility and good governance for the good of the public.

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