[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 22-11421 ____________________

JAMES ERIC MCDONOUGH, Plaintiff-Appellant, versus CARLOS GARCIA, GARLAND WRIGHT, individually, CITY OF HOMESTEAD, a political subdivision of the State of Florida,

Defendants-Appellees.

____________________ USCA11 Case: 22-11421 Document: 41-1 Date Filed: 01/10/2024 Page: 2 of 33

2 Opinion of the Court 22-11421

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cv-21986-FAM ____________________

Before JILL PRYOR, NEWSOM, and GRANT, Circuit Judges. GRANT, Circuit Judge: James McDonough, a self-styled citizen activist, was escorted out of a city council meeting in Homestead, Florida after he verbally attacked one of the council’s members. That removal, which the parties now agree was legal, was followed by a series of events that do not benefit from a similar posture of détente—an arrest for disorderly conduct, an indefinite ban from city hall, and an arrest for cyberstalking. This lawsuit challenges all three. McDonough first says the City and its officials violated the First Amendment by banning him from future meetings. Before we can consider that argument, we need to know what kind of public forum those meetings are, because the City’s ability to restrict McDonough’s speech depends almost entirely on the answer to that question. But that inquiry highlights an unresolved tension in our Circuit’s First Amendment jurisprudence. While the Supreme Court’s public forum framework has evolved substantially over the last forty years, our precedents have failed to keep pace. It seems likely that the Supreme Court would treat the Homestead City Council meeting as a limited public forum. That USCA11 Case: 22-11421 Document: 41-1 Date Filed: 01/10/2024 Page: 3 of 33

22-11421 Opinion of the Court 3

Court, however, has not specifically considered city council meetings—and this one has. Our earliest panel precedent treats a city council meeting reserved for the discussion of limited subjects as a designated public forum, so the comparatively tougher standards for analyzing speech restrictions in that kind of forum must apply here. Following those standards, we reverse the district court’s grant of summary judgment for the City on the speech ban. But we affirm the district court’s summary judgment decision finding qualified immunity for the officer who enforced the City’s ban. Moving on to the false-arrest counts, McDonough first argues that he should not have been arrested for disorderly conduct after he was removed from City Hall—even accepting as true the officers’ claims that he was grabbing his crotch and loudly cursing at them. Here, we agree. Our precedents show that yelling, cursing, and making obscene gestures toward police officers, without more, does not amount to probable cause for a disorderly conduct arrest. The arresting officers should have known this too, so we deny qua