Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
LIBBRA v. CITY OF LITCHFIELD
July 20, 1995
JOE A. LIBBRA, VICKI L. LIBBRA, TROY A. LIBBRA, TODD A. LIBBRA, PLAINTIFFS,
THE CITY OF LITCHFIELD, ILLINOIS, KATHRYN DOBRINIC, DOROTHY MANSHOLT, WILLIAM DOLAHITE, DEFENDANTS.
The opinion of the court was delivered by: Richard Mills, District Judge:
The conduct of the Libbra family is revolting and disgraceful!
Summary judgment is entered for all Defendants.
The Libbras moved to the City of Litchfield sometime during the
middle of 1989. They rented their home at 822 East Union Street
from David and Rebecca Joudah. Sometime during 1990, Joe Libbra
began posting signs in his yard critical of public, including the
named Defendants, and private individuals. Examples of a few of
Joe Libbra's signs include: "Has newspaper owner been accused of
fondling boys? Ask him;" "Ms. Mayor and superintendent having an
affair;" "Did city attorney get AIDS Debbie's whorehouse;" and
"Miss D.A. needs line coke."
On December 12, 1990, at approximately 3:30 a.m., someone set
fire to the Libbras' signs (the signs that were set afire are not
the signs mentioned in the preceding paragraph). The cause of the
fire has never been determined.
On June 4, 1990, as a result of David and Rebecca Joudahs' (the
record title holders of the Libbras' home) failure to maintain
their monthly mortgage payments, America's Mortgage Company filed
a complaint for foreclosure in Montgomery County against the
Joudahs and twelve lien holders. The Libbras were not named in
the foreclosure action. On September 13, 1990, America's Mortgage
Company, through its attorney, Nancy Handegan, requested a
hearing on its complaint for foreclosure. The Joudahs failed to
appear and were consequently defaulted. Circuit Judge John P.
Coady of the Montgomery County Circuit Court entered an order
allowing the judgment and sale of the property. On February 14,
1991, Judge Coady subsequently entered an order confirming the
sale of the property. Judge Coady's order also authorized the
Sheriff of Montgomery County to obtain and turn over possession
of the Libbras' residence to America's Mortgage Company on or
after March 16, 1991.
On March 26 and in May of 1991, the Libbras were served with
Judge Coady's order authorizing the sheriff to turn over
possession of their residence to America's Mortgage Company. The
Libbras failed to vacate the property. Because the Libbras would
not voluntarily vacate the premises, America's Mortgage Company
intended to evict them on June 3, 1991. However, prior to that
date, Attorney Handegan spoke to Joe Libbra and he agreed to
vacate the premises by June 15; the eviction was therefore
On the morning of June 18, 1991, as a result of the Libbras'
failure to vacate the premises, a moving company hired by
America's Mortgage Company proceeded to remove the Libbras'
possessions from their residence. Immediately thereafter, the
Libbras, pro se, petitioned Judge Coady for an emergency
hearing. Later that day, an emergency hearing was held before
Judge Coady. Judge Coady, apparently concerned that the ejectment
of the Libbras was improper because they were never made a party
to the foreclosure proceeding against the Joudahs, ordered
America's Mortgage Company to cease the eviction process. A
hearing on the Libbras' right to possess the property was set for
June 27, 1991.
On June 27, Judge Coady determined that the Libbras had no
right to possess the property. Consequently, he entered an order
directing the Libbras to vacate the premises by July 18, 1991.
The Libbras did not appeal that order.
Sometime during late 1990 or early 1991, police officers from
the City of Litchfield were directed to take pictures of the
Libbras' signs. This generally occurred on a daily basis, for
fifteen to thirty minutes at a time, until the Libbras were
evicted from their residence.
On June 20, 21, 22, and 23 of 1991, the City of Litchfield
issued tickets to Joe Libbra, charging him with a violation of
the City's zoning ordinance. The Libbras continued to post signs
at their residence on Union street until they were evicted on
July 18, 1991. Following the eviction, from July to December
1991, the Libbras resided with Joe Libbra's mother. No signs were
posted at the mother's residence. In December 1991, the Libbras
moved from their mother's residence
to another home in Litchfield and immediately began posting signs
again. The Libbras posted signs until Joe Libbra agreed to stop
as part of his probation agreement for a felony conviction for
intimidation in 1993. The four zoning ordinance tickets issued to
Joe Libbra in 1991 were never prosecuted and were dismissed for
want of prosecution on March 10, 1994.
LEGAL STANDARD — SUMMARY JUDGMENT
Under Fed.R.Civ.P. 56(c), summary judgment shall be granted if
the record shows that "there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Black v. Henry Pratt Co., 778 F.2d 1278,
1281 (7th Cir. 1985). The moving party has the burden of
providing proper documentary evidence to show the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue
of material fact exists when "there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Unquestionably,
in determining whether a genuine issue of material fact exists,
the evidence is to be taken in the light most favorable to the
nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90
S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met
its burden, the opposing party must come forward with specific
evidence, not mere allegations or denials of the pleadings, which
demonstrates that there is a genuine issue for trial. Howland v.
Kilquist, 833 F.2d 639 (7th Cir. 1987). Furthermore, "[w]here
the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine issue
for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
The Libbras initiate this action under 42 U.S.C. § 1983
alleging violations of their First Amendment rights.*fn1 In
order to establish a successful § 1983 claim, the Libbras must
show (1) that the conduct complained of was committed by a person
acting under color of state law and (2) that this conduct
deprived a person of rights, privileges, or immunities secured by
the Constitution or laws of the United States. New Burnham
Prairie Homes v. Village of Burnham, 910 F.2d 1474, 1479 (7th
Cir. 1990). Since Defendants do not dispute that they acted under
the color of state law, the issue under § 1983 is whether the
Libbras were deprived of rights secured by the Constitution.
The Libbras characterize their claim against Defendants as a
conspiracy to deprive them of their First Amendment guarantee of
freedom of speech. However, based on the allegations of the
complaint and the pleadings in this matter, it appears more
accurate to characterize this action as a conspiracy to retaliate
against the Libbras for exercising their First Amendment
Section 1983 does not punish conspiracy, Goldschmidt v.
Patchett, 686 F.2d 582, 585 (7th Cir. 1982), rather, as a
practical matter, proof of a civil conspiracy simply broadens the
scope of liability under § 1983
to include individuals who were part of a conspiracy but did not
act directly to deprive a plaintiff of his or her constitutional
rights. Miller v. Village of Dolton, No. 94-C-765, 1995 WL
137051, *5, LEXIS 3892, *16 (N.D.Ill. Mar. 27, 1995). In order to
establish a prima facie case of a civil conspiracy, "a plaintiff
must show (1) an express or implied agreement among defendants to
deprive plaintiff of his or her constitutional rights and (2)
actual deprivations of those rights in the form of overt acts in
furtherance of the agreement." Scherer v. Balkema,
840 F.2d 437, 442 (7th Cir. 1988). Because we conclude that the Libbras
were not deprived of any constitutional rights by the alleged
conspirators (element # 2), we need not decide whether they have
provided sufficient evidence of an express or implied agreement
amongst those conspirators.
As previously indicated, we construe the pleadings in this
matter as alleging that Defendants conspired to retaliate against
the Libbra family for exercising their First Amendment right to
freedom of speech. Specifically, as a result of posting signs in
their yard critical of public and private individuals, the
Libbras claim that they were retaliated against and harassed by
Defendants.*fn3 Assuming the content of the signs qualifies as
protected speech and the Libbras were in fact retaliated against,
such a claim is undoubtedly actionable under § 1983. Smart v.
Board of Trustees of Univ. of Illinois, 34 F.3d 432, 434 (7th
Cir. 1994) ("Any form of official retaliation for exercising
one's freedom of speech is actionable as an infringement of that
freedom."); Rakovich v. Wade, 850 F.2d 1180, 1211 (7th Cir.
1988) ("[A]n act in retaliation for the exercise of a
constitutionally protected[, for example, a first amendment
interest,] is actionable under § 1983.").
As evidence of Defendants' retaliatory conduct, the Libbras
identify four events: (1) their signs were set ablaze; (2) they
were "illegally" evicted from their home; (3) the Litchfield
Police Department parked their automobiles in front of their
residence and photographed the signs; and (4) the Litchfield
Police Department issued four tickets to Joe Libbra for violating
a residential zoning ordinance. We will discuss whether these
events qualify as retaliatory conduct, but, we must begin our
analysis of the Libbras' claim with the threshold question posed
in any suit alleging a violation of the First Amendment; namely,
whether the speech at issue is protected. Hedges v. Wauconda
Community Unit School Dist., 807 F. Supp. 444, 453 (N.D.Ill.
Of course, determining whether the speech at issue qualifies as
protected speech presents many interesting issues. At this point,
the Court notes that our independent research could not uncover a
reported case factually and legally similar to the instant
action. Consequently, we are writing on a clean slate with
respect to several of the issues presented in this matter.
Regardless, based on the established precedent derived from
somewhat analogous § 1983 First Amendment cases, we are confident
that our resolution of the issues is in harmony with First
The first issue concerns which party has the burden of proof in
a case of this nature. The Libbras raised this issue in a motion
in limine, and in our order of June 22, 1995, we concluded that
they, as plaintiffs, have the burden of establishing that the
speech at issue qualifies as protected speech. To summarize our
prior holding, the Libbras initiated this case under § 1983 and
as an element of such a claim, they must establish that
Defendants' conduct deprived them of a right secured by the
Constitution. Of course, since not all speech is protected,
R.A.V. v. City of St. Paul, 505 U.S. 377, 406, 112 S.Ct. 2538,
2555, 120 L.Ed.2d 305 (1992) (White, J., concurring) ("[T]he
First Amendment does not apply to categories of unprotected
speech."), the Libbras cannot claim that they were deprived of a
Constitutional right until and unless they establish that they
were engaged in speech protected under the First Amendment,
i.e., establishing a
Constitutional — First Amendment — deprivation is a part of their
prima facie case. Accordingly, it seems clear that the Libbras
are burdened with the task of convincing the Court that the
content of their signs qualifies as protected speech and thus
enjoys Constitutional protection.*fn4 See Caldwell v. City of
Elwood, 959 F.2d 670, 672 (7th Cir. 1992) (In the context of a
public employee alleging that he was retaliated against for
exercising his First Amendment guarantee of free speech, the
public employee must establish "that the speech [he] engaged in
was constitutionally protected under the circumstances.");
Brookins v. Kolb, 990 F.2d 308, 313 (7th Cir. 1993) (In a case
involving a prisoner who claimed prison officials retaliated
against him for exercising his First Amendment rights, the
Seventh Circuit stated that "[plaintiff] has not demonstrated
that the speech contained in his letter rose to the level of
protected speech."); Clayton-El v. Caraway, 1992 WL 266023, *3,
No. 90-2251, LEXIS 25727, *8 (7th Cir. Oct. 6, 1992)
("[Plaintiff] cites no authority for the proposition that `smart
mouthing' and `cursing' at prison guards are forms of speech that
enjoy protection under the First Amendment.").
Allocating the burden of establishing the protected status of
the speech to the Libbras, however, leads to a peculiar
predicament as a result of the arguments raised in this matter.
That is, in arguing that the content of the Libbras' signs is not
protected speech, Defendants resort to the law of defamation,
slander, and libel claiming that the signs contain false,
baseless, and unfounded accusations. As a general statement, it
is true that if the Libbras acted with "actual malice," i.e.,
knowledge of the falsity of their statements or reckless
disregard of whether their statements were true or false, New
York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710,
725-726, 11 L.Ed.2d 686 (1964), their speech does not enjoy First
Amendment protection. See Brenner v. Brown, 36 F.3d 18, 20 (7th
Cir. 1994) ("[S]peech is not protected where it is made with a
reckless disregard for the truth. . . .").
The "actual malice" inquiry as to whether speech enjoys
Constitutional protection developed in the context of public
officials initiating defamation claims as a result of alleged
defamatory statements relating to their official conduct.
However, in cases of that nature, the public official — as the
plaintiff, of course — has the burden of proof as to whether the
particular statement was made with actual malice. But here,
because the Libbras, as plaintiffs, are initiating this action
under § 1983, they must establish a Constitutional deprivation
and no such deprivation results unless their speech is protected
under the First Amendment. Thus, the Libbras must come forward
with evidence that their derogatory statements directed at
numerous public and private individuals were not made with
actual malice. Otherwise, they have failed to establish that
their speech enjoys First Amendment protection.
At first glance, the fact that the Libbras are burdened with
the task of establishing that their statements were not made
with actual malice, yet, if the Libbras were named as defendants
in defamation actions brought by the "targets" of their signs,
those individuals — not the Libbras — would have to establish
that the statements were in fact made with actual malice in order
to prevail, may appear troubling. However, we believe this is the
correct approach in a case of this nature. Again, as we have
repeatedly noted, this is a § 1983 action initiated by the
Libbras. As part of their prima facie case under § 1983, the
Libbras must establish a Constitutional deprivation. Here, there
is no Constitutional deprivation unless the speech at issue
qualifies as protected speech. And, since not all speech is
protected under the First Amendment, the Libbras cannot establish
a prima facie case unless they show that
their speech enjoys First Amendment protection. Finally, since
statements made with actual malice do not enjoy First Amendment
protection, the Libbras must show that their statements were made
in the absence of actual malice.*fn5
A case of this nature raises another interesting issue. In a §
1983 suit involving a public employee who alleged that she was
retaliated against because she had exercised her Constitutionally
protected right of free speech, the Supreme Court held that "the
inquiry into the protected status of speech is one of law, not
fact." Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct.
1684, 1690 n. 7, 75 L.Ed.2d 708 (1983). Thus, in the instant
matter, it would appear clear that the Court is to determine
whether the Libbras' signs qualify as protected speech. However,
in order to determine whether the speech at issue qualifies as
protected speech, we must consider whether the Libbras acted with
actual malice. But, in defamation actions initiated by public
officials, it is the jury that must determine whether the speaker
acted with actual malice, not the court. See Babb v. Minder,
806 F.2d 749, 756 (7th Cir. 1986) ("The evidence adduced at trial
indicates that [defendant] acted with reckless disregard of the
truth or falsity of the defamatory statements and thus supports
the jury finding of actual malice."). Regardless, because we
conclude in this opinion that the Libbras' conduct constitutes as
actual malice as a matter of law (i.e., no rational trier of
fact could conclude otherwise), no further discussion concerning
this particular dilemma is necessary.
Now, to the heart of the analysis.
As previously indicated, in order to determine if the content
of the Libbras' signs rises to the level of protected speech, we
defer, in large part, to "actual malice" jurisprudence. Actual
malice is generally defined as statements made "with knowledge of
their falsity or in reckless disregard of whether they are true
or false." Garrison v. Louisiana, 379 U.S. 64, 78, 85 S.Ct.
209, 217, 13 L.Ed.2d 125 (1964); accord, Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 109
S.Ct. 2678, 2696, 105 L.Ed.2d 562 (1989). "Reckless disregard" in
turn is loosely defined as requiring, at a minimum, that the
speaker make the statements with a "high degree of awareness of
their probable falsity," Garrison, 379 U.S. at 74, 85 S.Ct. at
216, or he must have "entertained serious doubts as to the truth
of his publication." St. Amant v. Thompson, 390 U.S. 727, 731,
88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). However, in
determining whether a statement was made with "actual malice" or,
more particularly, with "reckless disregard," the Supreme Court
has cautioned that these terms are not capable of being defined
in "one infallible definition." Harte-Hanks Communications,
Inc., 491 U.S. at 686, 109 S.Ct. at 2695. "Rather, only through
the course of case-by-case adjudication can we give content to
these otherwise elusive constitutional standards." Id.
With this in mind, we will now analyze the signs at issue to
determine if the statements contained therein were made with
"actual malice," or more specifically, with "reckless disregard."
Before beginning the analysis, however, we must take care of one
last preliminary matter. We are mindful that statements of
opinion receive full Constitutional protection under the First
Amendment. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20,
110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990). However, since the
statements contained within the signs at issue here reasonably
imply that the Libbras had an underlying factual basis for making
those statements, the statements do not qualify as mere opinions.
See id. at 20, 110 S.Ct. at 2706; Haynes v. Alfred A. Knopf,
Inc., 8 F.3d 1222, 1227 (7th Cir. 1993) ("[I]f it is plain that
the speaker is expressing a subjective view, an interpretation, a
theory, conjecture, or surmise, rather than claiming to be in
possession of objectively verifiable facts, the statement is not
actionable.") (emphasis ours).
Since the Libbras are burdened with the task of convincing the
Court that their signs are protected under the First Amendment,
our analysis will be limited to only those signs discussed in the
Libbras' summary judgment responses. We will not sift through the
voluminous deposition testimony searching for signs not discussed
in the pleadings, nor will we devise arguments for the Libbras.
Such is their attorney's responsibility, not ours.
A. "Has newspaper owner been accused of fondling boys? Ask him"
The first sign stated: "Has newspaper owner been accused of
fondling boys? Ask him." The Litchfield News Herald is owned by
John Hanafin.*fn6 Although the entire Libbra family is named as
plaintiffs in this action, only Joe Libbra accepted
responsibility for creating this particular sign. Thus, since
Vicki, Troy, and Todd Libbra did not ...