The lawsuit was brought on Rebekah Massie's behalf by attorneys for the Foundation for Individual Rights and Expression, or FIRE. Surprise resident Quintus Schulzke, a frequent speaker at city council meetings, joined Massie as a plaintiff in the suit. FIRE is representing both pro bono.
FIRE also named as defendants Hall and Surprise police officer Steven Shernicoff, who detained Massie and forcibly ejected her from the council chamber.
“I wanted to teach my children the importance of standing up for their rights and doing what is right — now I’m teaching that lesson to the city," Massie said in a statement provided by FIRE. "It’s important to fight back to show all of my children that the First Amendment is more powerful than the whims of any government official.”
Hall did not respond to a request for comment. Virginia Mungovan, the city's marketing and communications director, told Phoenix New Times that "the City does not comment on pending litigation."
Massie operates The Grand Failure, a nonprofit organization the lawsuit describes as "critical of the government of the City of Surprise." The 32-year-old also is a vociferous critic of the city and a frequent speaker at city council meetings.
In March, Massie butted heads with councilmember Aly Cline, who removed signs Massie had posted on city property to "promote her website and another candidate for mayor." In May, the Maricopa County Attorney's Office declined to prosecute Cline, citing "No Reasonable Likelihood of Conviction."
Massie was the only person who signed up to speak during the public comment portion of the Aug. 20 meeting. She intended to use her allotted three minutes to lobby against a proposed pay raise for City Attorney Robert Wingo, whom she said was already overpaid. Hall interjected, citing a city policy that bars anyone from using the public comment portion of city council meetings "to lodge charges or complaints" against any city employee or city council member.
"That's all fine, well and good," Massie responded, "but that’s a violation of my First Amendment rights.”
Minutes later, after an argument with Hall about the First Amendment, Shernicoff removed a screaming Massie from the meeting, leaving her 10-year-old daughter behind.
Massie was cited for trespassing, a class 3 misdemeanor with a maximum penalty of 30 days in jail and a $500 fine. Maricopa County Justice Court records show that Massie is scheduled to be arraigned on the trespassing charge in Hassayampa Justice Court on Sept. 25.
In an email to New Times, Massie's criminal defense attorney Bret Royle wrote that "we are prepared to fight the criminal charges while holding the City of Surprise responsible for violating Rebekah's constitutional rights."
Surprise Mayor Skip Hall ordered a police officer to arrest resident Rebekah Massie after Massie criticized a pay raise for the city attorney.
City of Surprise
‘Do not put your hands on me!’
Only six minutes elapsed between when Massie approached the podium to begin speaking and when Shernicoff removed her from the chamber. But those six minutes, which can be seen in video of the council meeting posted to the city website, encompassed a spirited argument about free speech."This is your warning," Hall told Massie after she asserted her right to free speech.
"My warning for what?" she replied.
Hall then held up a form that citizens must fill out before offering public comment at city council meetings. Near the bottom of the form, under the heading "Public Meeting & Public Hearing Rules," is a section prohibiting anyone from lodging "charges or complaints" against city employees or council members.
During their back-and-forth, Massie repeatedly asserted that the policy was unconstitutional. Hall argued it wasn't.
“It is. The Supreme Court has upheld it," Massie stated. "I could get up here, and I could swear at you for three straight minutes, and it’s protected speech by the Supreme Court."
A few seconds later, Hall appeared to reach his limit. "Do you want to be escorted out of here?” he asked before commanding Massie to "stop talking." When Massie refused, again citing her right to free speech, Hall asked for a police officer to remove her from the room.
“In front of my 10-year-old daughter, you’re going to escort me out for expressing my First Amendment rights?” Massie said.
Shernicoff then approached Massie at the podium, asking her to come with him while wrenching one of her arms behind her back. When Massie refused to leave, Shernicoff became more forceful. As he pushed Massie from the room, Massie yelled and demanded to know why she was being arrested.
"Under what charges? Under what charges?" she yelled.
In her lawsuit, Massie claimed Shernicoff "bruised and injured" her wrists, arms and legs when he handcuffed her and ejected her from the meeting. Her lawsuit also said the police officer left her daughter behind in the city council chamber and did not allow Massie to "make a phone call or otherwise attempt to locate her daughter." FIRE attorney Conor Fitzpatrick said Massie and her daughter were separated for roughly two hours, though he was not sure how they reconnected.
As screams emanated from outside the chamber, Hall motioned for the meeting to go into executive session.
"That might be how repressive regimes treat government critics," Massie's lawsuit read, "but it's an affront to our Constitution."
Before and during her arrest at a Surprise City Council meeting, Rebekah Massie argued vehemently that her First Amendment rights were being violated.
City of Surprise
Public outcry
Massie's arrest generated national headlines, which Fitzpatrick said is how FIRE was alerted to the case."The city council can’t censor the public at a public hearing," Fitzpatrick said. "That’s the point of a public hearing and a public comment period, so the public can show up and comment.
The incident also spurred calls for Hall, who is leaving office in December, to resign. Additionally, Surprise Mayor-Elect Kevin Sartor condemned Massie's arrest.
“As Americans, our right to free speech is fundamental, especially when it comes to holding our government accountable,” Sartor said. “What happened to Rebekah Massie is unacceptable. No citizen should ever be arrested for voicing their concerns, especially in a forum specifically designed for public input.”
The lawsuit cited state law A.R.S. 38-431.01, which declares in part that open calls to the public must "allow individuals to address the public body on any issue within the jurisdiction of the public body." A proposed raise to a city official would seem to fit that definition.
The suit also notes that city council meetings regularly welcomed and condoned praise of public officials and employees from members of the public, creating a double standard for speech.
"Any policy like the one the city of Surprise has here, which allows residents to show up and praise their elected officials but not criticize them is unconstitutional," Fitzpatrick said.
The lawsuit said Schulzke, whom it described as active in local politics and a frequent attendee of city council meetings, has refrained from speaking at meetings since Massie's arrest. "Schulzke fears that he will be silenced, ejected, or arrested" for any criticism of the city or its employees and officials, the suit said.
"Because of this council criticism policy, because the mayor is now having critics led out in handcuffs, (it) leads people like Quintus who want to be involved in their community to self-censor," Fitzpatrick said.
The lawsuit asks a federal judge to declare that Surprise's anticriticism policy is unconstitutional and to prevent the city from enforcing it. Massie also is seeking damages for the violation of her First and Fourth Amendment rights. Fitzpatrick said FIRE will also file a motion for a preliminary injunction asking that the anticriticism policy be suspended while the lawsuit is pending.
