Brenners And County File Briefs In Federal Lawsuit

By MAIRE O’NEILL
Los Alamos Daily Post

Two more briefs have been entered in a federal lawsuit filed in May by former Los Alamos resident Patrick Brenner and his mother, Los Alamos resident Lisa Brenner, alleging retaliation and harassment including malicious prosecution and defamation by the Los Alamos County Council, Los Alamos Police Chief Dino Sgambellone and two unnamed police officers.

Also named in the suit are Councilor Susan O’Leary and former Councilor James Chrobocinski in both their official and individual capacities.

The lawsuit filed by attorneys Blair Dunn and Dori E. Richards states that the case arises from a complaint lodged by the Brenners with the County “after a series of events triggered by the exercise of their right to free speech and a request for public documents”.

The County responded June 29 with a motion to dismiss the Brenners’ case saying the Brenners failed to state a claim on which relief could be granted. The County’s motion says the Brenners incorrectly assume in their complaint that they have an expectation of privacy regarding the emails they made public and the information within those emails and that the documents that are the subject of their suit do not carry an expectation of privacy. The motion to dismiss states that even if they did carry that expectation, the Brenners failed to demonstrate a prima facia case for 1st Amendment retaliation therefore there is no violation of their 1st Amendment rights.

The County asserts that the basis of the retaliation claim is the release of confidential communications between Patrick Brenner and the County.

“Concepts of confidential communications and ethics complaints to public bodies are clearly defined in the 4th Amendment and State of New Mexico jurisprudence respectively,” the motion states. It states that the Brenners do not have a reasonable expectation of privacy regarding the email or ethics complaint Patrick Brenner submitted “due to the public nature of the recipient of his transmissions”. The County maintains that the transmission of an email is analogous to the transmission where the sender’s expectation of privacy ends upon delivery of the letter. The motion states that Patrick Brenner “widely publicized his materials” and now claims “that the release of that record is retaliation when those materials are in the community”.

“The (Brenners) cannot create, publish and disseminate information and then complain they had an expectation of privacy when the information is further distributed,” the motion states.

The County maintains that since complaints made to public bodies such as those in this case are included in the definition of public records and as such are available to the public, therefore Patrick Brenner’s documents cannot be considered confidential information and did not carry an expectation of privacy once they were submitted to the public body and became part of the public sphere.

“It is ironic that the (Brenners) complain about the breadth of the publication of their complaints when they were actively seeking to open debate and challenge the rationales behind the bond. Furthermore, based on the aggressive and seemingly threatening and hostile nature of the emails, County defendants could also have shared the information to make sure they were not in danger,” the motion states.

The Brenners response filed July 17 by their attorney Blair Dunn states that although the County is seeking dismissal of their suit, the County’s argument suggests that in reality they do not desire dismissal but are seeking summary judgment in that they assert that there is a lack of genuine fact issue as to an expectation of privacy by Patrick Brenner in regard to an email he sent to County councilors. The response says the County’s belief of the basis of the complaint is erroneous and misunderstood. It indicates the complaint is not based on release of Patrick Brenner’s email communication but on a pattern of actions taken by the County to chill the Brenners’ protected speech and protected right to petition their government.

The response maintains that even if the release of Patrick Brenner’s email would be permissible at some time in some manner, the release made by Councilors O’Leary and Chrobocinski did not comport with the timely manner process mandated by state law or County policy in practice. It states that the release of a confidential ethics complaint protected by the petition clause in a manner at odds with the County Charter supports 1st Amendment retaliation and that the factual averments of the complaint demonstrate harassment and retaliation initiated from the Brenners’ protected speech opposing the “Chrobocinski/O’Leary supported rec bond”. 

The Brenners claim “the subsequent improper release of documents, ethics complaint, police presence and harassment are each a part of the retaliatory conduct” and that the County is simply wrong in arguing that the suit is simply “based” on the content of an email.

“Finally, while the defendants seek dismissal as to each of them, nowhere in the motion do they articulate the acts each allegedly took, how the averred actions/conduct relate to them and dismissal is appropriate on each of their behalves. For example, as to the named law enforcement officers, defendants do not demonstrate or even suggest the raised basis for dismissal (lack of privacy expectation) applies to them, nor do they even address the retaliatory police harassment/conduct as averred to in the complaint. Defendants do not suggest a nexus or lack thereof between the asserted premise for dismissal and law enforcement officer conduct, yet another failing of the motion’, the motion states.

The County is represented in this case by attorney Tony F. Ortiz.

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