Bothell man sues city over First Amendment rights

A Bothell police officer met resident James Barnhart at the doors of Bothell Municipal Court on Jan. 15.

A Bothell police officer met resident James Barnhart at the doors of Bothell Municipal Court on Jan. 15.

Bothell Police Deputy Chief Henry Simon told him the council passed new rules for signage at meetings and that the signs he had brought into Bothell City Council meetings for years were no longer allowed.

Barnhart has since filed a federal lawsuit, claiming that city officials have infringed on his First Amendment rights. The lawsuit was filed in Seattle in federal court on April 3 by Barnhart’s lawyers at MacDonald, Hoague & Bayless.

“I want them to remove the change to the protocol,” said Barnhart. “I want to be able to go in with my signs. I understand it has to be within reason but two sheets of paper is not within reason.”

The city’s new protocol states that anyone who wishes to bring a sign into a city council meeting must hold it to two sheets of standard size notebook paper. The signs cannot contain otherwise inappropriate, slanderous, rude or boisterous language. Anyone violating the new protocol is subject to removal, arrest and prosecution.

“It is an intimidation tactic to discourage people from speaking up,” said Barnhart, who has lived in Bothell for 20 years. “I spent years in the Airforce to protect our rights. We all have to stand up for each other … I don’t think they anticipated what I would bring on.”

City of Bothell officials stand by the city’s policies in the face of the lawsuit.

“Mr. Barnhart has brought his allegations to federal court where they are currently in litigation,” said Bothell City Attorney Joe Beck in an email to the Reporter. “The city strongly believes that Mr. Barnhart’s legal claims are without merit and his complaint contains numerous factual inaccuracies. The city has acted appropriately and is vigorously defending against Mr. Barnhart’s claims. It would be inappropriate for the city to try the claims or debate the facts with Mr. Barnhart in the media.”

Barnhart is not shy. He has a lot to say about his local municipality. For years he has brought signs to city council meetings to express his opinions about alleged corruption in the local government along with Mayor Mark Lamb’s conduct.

Beck has said that the provision is not a freedom of speech violation. Under state law and the Open Public Meetings Act, the council is required to hold open meetings and the public has the right to attend, but council meetings are not free speech forums, like a more traditional place, such as a public street.

But Barnhart’s lawyers disagree.

“Basically, the City of Bothell is saying it’s OK to bring a sign, but only if we like the message, and only if we can’t really read it because the signs are so small,” said Joe Shaeffer, an attorney for MacDonald, Hoague & Bayless, who represents Barnhart, along with attorney David Whedbee.

The lawsuit states that the city selectively waited until Barnhart showed up with signs that government officials did not like to post the public comment notice that expressly bans the signs.

“Mr. Barnhart displays his signs by standing quietly in the back of the council chambers, holding his signs in front of him. He does not obstruct anyone’s view, does not talk out of turn, does not affix the signs to the walls, does not brandish the signs at anyone, and does not otherwise disrupt the orderly progress of the meetings,” according to court documents.

Barnhart’s signs have to do with a myriad of topics. One is a re-elect Mark Lamb sign with a red circle and slash through it. Another states “Power corrupts. Absolute power corrupts absolutely.” Others compare the Bothell Police Department and government to the Soviet Union.

But the sign that Barnhart says triggered the council’s new stance pertains to what he says is a lack of disciplinary action on a Bothell police officer. The sign reads: “Brady List: Cops that have been caught lying under oath. Former Bothell cop Frank McCahill is on that list. He was also investigated for rape, carelessly discharging his firearm and violated 16 of 20 Bothell cop codes. Three of four captains recommended he be terminated but wasn’t (Arnold wasn’t available) :),” according to court documents.

Barnhart has also filed for an injunction to stop the new protocol until his federal lawsuit can be heard. In those documents Barnhart’s lawyers state that “A public disclosure request has revealed that Officer Valentino opened an investigation into Mr. Barnhart’s speech activities at the behest of Officer McCahill, warned Mr. Barnhart that he might ‘find himself looking at charges or a civil law suit,’ and collected other officials’ statements about Mr. Barnhart’s speech activities on another occasion where he was displaying signs in public areas.”

Following the investigation, the council adopted the protocol.

But the lawsuit is more about having the right to speak his mind and not about the specific message, his attorneys say.

“The problem is, we live in a free society where our First Amendment requires that government sometimes has to put up with speech it doesn’t really like,” said Shaeffer.

The lawsuit also accuses the city of taking the action improperly in an executive session rather than in a general meeting, violating the Washington Open Meetings Act. Prior to the action, the city’s Protocol Manual had no language concerning signage during council meetings.

“I was watching C-SPAN and there was someone in the audience with a sign there [ U.S. Congress],” Barnhart noted.