By Rick Pfeiffer
Niagara Gazette — BUFFALO — A civil rights lawsuit, brought against the Falls by the brother of former Mayor Vince Anello, will go to trial in U.S. District Court in Buffalo in December.
Chief District Court Judge Judge William Skretny had previously dismissed part of the suit brought by Matteo Anello. The city then asked the Second Circuit United States Court of Appeals, in New York City, to throwout the remainder.
On May 31, the Court of Appeals rejected the city's request.
In a brief, two-page ruling, a panel of three appeals court judges found that current City Council Members Robert Anderson and Sam Fruscione, along with former council member Chris Robins, did not have "qualified immunity" from Anello's claim that he was denied his First Amendment rights when he was stopped from addressing a city council meeting in Oct. 2007.
The three judge panel agreed with Skretny, who. in his original ruling, said the issue of whether Anello's free speech rights were denied was a "question of fact" best left to a jury to decide.
"In the instant case, it is a question of fact whether Anello was silenced in the limited public forum of the City Council meeting based upon his 'opinion or perspective' or for other permissible reasons,' the judges wrote. "Viewing the facts in the light most favorable to Anello, he was prevented from speaking at the city council meeting because of the council's disapproval of his perspective."
In his ruling, Skretny wrote that Anderson's decision to cut-off Anello as he spoke during the public comment portion of a council meeting "presents a question of fact as to whether Anello was impermissibly removed based on 'the opinion or perspective of the speaker'."
Skretny did, however, rule that Anello's claim of "false arrest" should be dismissed because the Falls police officer who took him into custody at the council meeting had "probable cause" to believe he had committed the crime of disorderly conduct.
The judge also dismissed a claim of "malicious prosecution" because Anello was eventually given an adjournment in contemplation of dismissal (ACD) on the disorderly conduct charge.
Lawyers for the city have argued that Anello was "disruptive" at the meeting and that the council members had a legal right to silence him and have him removed form the council chambers. The attorneys pointed to Anello's use of the words "guineas and grease balls" as proof he was disruptive.
The chief judge rejected that claim, saying a video of the incident "speaks for itself."
"Before Anderson instructed (Anello) to stop speaking, it can hardly be said that Anello's actions were discourteous, much less disruptive," Skretny wrote. "A review of the video reveals that there can be no question that (Anello) spoke calmly, even cordially."
Skretny called the efforts by city attorneys to argue Anello created a disturbance, "inadequate."
While allowing the First Amendment claim to go forward against Anderson, Fruscione and Robins, Skretny did dismiss that portion of the lawsuit against current Councilman Charles Walker and former Councilman Louis "Babe" Rotella. Skretny said neither Walker nor Rotella "did anything to restrict *(Anello's) remarks."
In a speech that Anello entitled: "Guineas and Grease Balls: Where There's Smoke There's Fire", the then-mayor's brother claimed that Anderson had used those derogatory terms to described Italian-Americans in the city.
The lawsuit was on hold for more than a year because Anello did not want to give attorneys for the city a copy of the speech. But U.S. Magistrate Judge Leslie Foschio ordered Anello to give a copy of the speech to the city's lawyers.
Skretny tried, during the time of the city's appeal, to resolve the case through mediation. A mediator was selected in December, but after a meeting between lawyers for the city and Anello in January those talks collapsed.
Anello is seeking unspecified damages from the city. His lawyer is asking Skretny to order the city to pay Anello's legal expenses.