BY LINDA BENTLEY | JANUARY 2, 2013
‘If plaintiff was mistakenly targeted as a disruptive member of the crowd, that was unfortunate, but it did not violate the First Amendment’
PHOENIX – On Dec. 28, U.S. District Court Judge Frederick J. Martone dismissed a complaint filed by Salvador Reza (r) against former Senate President Russell Pearce in June 2011.
Reza, who advocates rights for illegal aliens, claimed Pearce violated his rights to freedom of speech, freedom of assembly, freedom of association, freedom to petition and communicate with his elected representatives, and his right to due process and equal protection of the laws under the First and Fourteenth Amendments of the U.S. Constitution, when he was prohibited from entering the Arizona State Senate building on Feb. 24, 2011 by Department of Public Safety officers Jeff Trapp and John Burton.
Trapp and Burton informed Reza, by order of Senate President Russell Pearce, he was not allowed in the Arizona State Senate building due to his disorderly and disruptive behavior during a public hearing on Feb. 22, 2011, regarding a bill co-sponsored by Pearce.
Reza was subsequently arrested for trespassing but was never charged.
Reza was identified as one of the people in the overflow room during the Feb. 22 hearing that could be heard cheering and/or booing, causing disruption in the Senate hearing room.
Members of the Senate notified Sergeant-at-Arms Joe Kubacki of the disturbances. Kubacki, in turn, notified the crowd that Senate rules of decorum prohibited applause, cheers, and boos and asked them to remain quiet.
Kubacki alleged, in response to his request for decorum, Reza stood up and began to clap in a slow, rhythmic fashion, engaging other members of the crowd to clap along.
Kubacki reported the disturbances to Pearce, who, after the hearing, instructed Trapp to identify and photograph the offenders in the overflow room and deny them entrance to the Senate building.
At the time Pearce gave Trapp those instructions he claimed he was unaware Reza was among those in attendance.
Pearce issued a public statement the following day regarding disruptions at the Senate building.
Pearce noted protesters interrupted a press conference held by Sen. Kyrsten Sinema earlier that same day, causing her to fear for her safety and four people to be arrested by Capitol police for disorderly conduct.
He stated those types of incidents not only interfered with Senate business but presented “potentially dangerous situations.”
On March 14, 2011, Pearce introduced new rules concerning disruptions to Senate business, that called for a two-week exclusion from the Senate building for a first incident of disruption, a 60-day exclusion for a second incident and an indefinite exclusion for a “pattern of disorderly or disruptive conduct.”
In his complaint, Reza admits to being a “vocal and consistent critic” of Pearce’s policies and political affiliations and stated Pearce is aware of his criticism.
He also accused Pearce of being a racist, “with a well-documented history of racism toward Mexicans and individuals of Mexican ancestry,” and accused him of embracing, befriending, supporting, sponsoring and mentoring white supremacists and neo-Nazis.
While Pearce has been a leader in combating illegal immigration at the state level, Reza believes it is seated in racism.
And because Pearce mentioned “Operation Wetback,” the title of a 1954 INS operation to remove illegal immigrants, mostly Mexican nationals, from the southwestern United States, Reza claimed Pearce “mocked individuals of Mexican ancestry and referred to them as ‘wetbacks.’”
Reza argued because he was not disruptive, Pearce’s order banning him from entering the Senate building was unreasonable and, therefore, unconstitutional.
Martone wrote, “Even accepting as true plaintiff was not disruptive, we nevertheless conclude that Pearce is entitled to qualified immunity,” pointing out qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments,” providing “ample protection to all but the plainly incompetent or those who knowingly violate the law.”
He went on to say the undisputed facts showed Pearce instructed Trapp to identify all individuals in the overflow room who were disruptive, while making no distinction between supporters and opponents of the legislation. And, because Kubacki and Trapp both attested that Reza was disruptive during the hearing, Pearce believed Reza was one of the disruptive members of the crowd.
Martone stated, “This belief, coupled with the tense atmosphere at the Senate building on Feb. 22, 2011, the arrest of protestors earlier in the day, Sen. Sinema’s expressed fear surrounding the level of protests, as well as the shooting of 18 people at a political rally in Tucson, Ariz. just six weeks earlier, provided an objectively reasonable basis for Pearce to conclude that action needed to be taken to protect and preserve safety and decorum in the Senate building.”
Because Reza presented no evidence showing he was somehow singled out for the disciplinary treatment, and absent such evidence, Martone concluded Pearce acted in an objectively reasonable manner when he issued the order to exclude individuals from the Senate building who had been disruptive during the Feb. 22 hearing.
In declaring Pearce’s entitlement to qualified immunity and dismissing Reza’s complaint, Martone wrote, “If plaintiff was mistakenly targeted as a disruptive member of the crowd, that was unfortunate, but it did not violate the First Amendment.”