‘Anti-Gay’ Singer Issued Park Trespass Warning

December 22, 2022, Department, by James C. Kozlowski, J.D., Ph.D.

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Section 1983 provides a federal civil rights cause of action and personal liability upon a state actor who is responsible for using their official capacity and the legal system to deprive a person of their constitutional rights (42 U.S. Code, Section 1983).

In the case of Watkins v. Sullivan, 2022 U.S. App. LEXIS 28970 (11 Cir. 10/19/2022), Plaintiff Eric Watkins, representing himself “pro se,” brought a federal civil rights Section 1983 claim against Defendant Sandy Sullivan, a park employee in Fort Lauderdale, Florida.

The issue before the federal appeals court was whether Defendant Sullivan was entitled to “qualified immunity” from being personally liable in her individual capacity as a government official for an alleged Section 1983 violation of Watkins’s constitutional rights under the First Amendment to engage in free speech singing activity in a public park.

Facts of the Case

Watkins is a homeless man who lives out of his car. Between August 2011 and August 2015, Watkins made daily visits to a public park in Florida, using one of the park’s pavilions to prepare his meals. As part of his daily routine, Watkins would plug a cooking device into the pavilion’s electrical outlet. In addition, Watkins used his own personal pair of pliers to turn on the pavilion’s water shut-off valve to fill buckets of water for his personal use. Each time he visited the park, Watkins also would routinely sing a song, titled “Boom Bye Bye,” by reggae artist Buju Banton, an “anti-gay” song with lyrics advocating violence against gay people.

On the morning of August 11, 2015, Watkins carried out his usual routine, including preparing his breakfast and lunch using the pavilion’s electricity and water. After Watkins finished using the pavilion’s utilities, Watkins was standing by his car when he was approached by Sullivan, a park employee. Sullivan asked Watkins a question about his car. Watkins turned his back to Sullivan and continued moving his belongings from the pavilion to his car, all the while singing the anti-gay song.

According to Watkins, Sullivan became angry when she heard the lyrics of Watkins’s song. Sullivan then purportedly told Watkins she disliked the song, and she did not want Watkins to return to the park. In addition, Sullivan told Watkins she was calling the police.

A police officer of the City of Fort Lauderdale Police Department responded to Sullivan’s call. When the officer arrived, Sullivan told the officer that Watkins had violated park rules by using a pair of pliers to turn on the pavilion’s water pipe and by plugging in an electrical cooking device without a permit. At Sullivan’s request, the officer issued Watkins a trespass warning, explaining that Watkins would be arrested for trespassing if he remained on the premises. Watkins left the park without incident.

Section 1983 Claims

Watkins subsequently brought a Section 1983 action in federal court against Sullivan in her individual capacity. In his complaint, Watkins asserted the following three claims:

(a) Sullivan violated his First Amendment rights by issuing a trespass warning against Watkins because she did not like the song he was singing (Count 1); (b) Sullivan deprived Watkins of his right to patronize the park by fabricating a false reason for issuing a trespass warning (Count 2); and (c) Sullivan violated Watkins’s right to challenge the trespass warning by not informing him about the appeal process (Count 3).

The federal district court granted and denied in part Sullivan’s motion to dismiss. The district court concluded that Watkins had stated a claim for First Amendment retaliation in Count 1 and allowed that claim to proceed. The district court, however, dismissed Count 2 as duplicative of Count 1 and dismissed Count 3 for failure to state a claim.

Following discovery, Sullivan moved for summary judgment on Count 1. The district court granted summary judgment in favor of Sullivan, concluding Sullivan was entitled to qualified immunity. Watkins appealed.

Summary Judgment Review

In reviewing the district court’s grant of summary judgment in favor of Defendant Sullivan, the federal appeals court would view the complaint and all of the pretrial evidence in a light most favorable to Plaintiff Watkins. Summary judgment, effectively dismissing the lawsuit, would only be appropriate if all of the pretrial evidence left no doubt Watkins had failed to allege sufficient facts to provide a legal basis for his Section 1983 claims to proceed to trial.

Duplicative Claims

On appeal, Watkins challenged the district court’s dismissal of Count 2 as duplicative of the First Amendment retaliation claim asserted in Count 1. Watkins maintained that Count 2 asserted a separate “liberty interest/due process violation,” not a claim under the First Amendment.

Watkins in Count 1 had claimed Sullivan violated his First Amendment rights and deprived Watkins of his right to patronize the park when Sullivan issued an indefinite trespass warning because she did not like the song Watkins was singing. On the other hand, in Count 2, Watkins claimed a separate liberty interest when Sullivan deprived him of his right to patronize the park. In so doing, Watkins alleged that Sullivan had “fabricated a false claim against Watkins to hide the true reasons she was trespassing Watkins from the park, which was because of the song Watkins was singing.”

In the opinion of the federal appeals court, “the district court committed no error in dismissing Count 2 as impermissibly duplicative.” In reaching this conclusion, the federal appeals court determined the district court had “construed reasonably Count 2 as duplicative of the First Amendment retaliation claim asserted in Count 1.” Although “phrased slightly differently,” the appeals court found both Counts 1 and 2 had both effectively alleged Sullivan had “deprived Watkins of his same right to patronize the park in retaliation for Watkins’s exercising his First Amendment right to free speech.”

Failed Appeals Process Claim

The district court also had dismissed Count 3 of the complaint because Watkins had failed to identify a constitutionally inadequate appeals process to review his trespass warning. In his inadequate appeals process claim, the district court found Watkins had simply alleged “Sullivan never informed Watkins about the process for challenging the trespass warning,” which “did not render inadequate the underlying process itself.” Accordingly, the district court held Watkins had “failed to allege facts sufficient to show that Sullivan, a ‘park-level employee,’ had authority to promulgate and enact procedures or ordinances for challenging the trespass warning.” Watkins had claimed Sullivan was a park supervisor, but Sullivan had stated she was employed as a park ranger.

The federal appeals court agreed with the district court. In the opinion of the appeals court, “Watkins neither pointed to a constitutionally inadequate process nor alleged facts sufficient to demonstrate that Sullivan had the requisite final policymaking authority to trigger municipal liability” under Section 1983.

Section 1983 Qualified Immunity

As described by the federal appeals court: “Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” As characterized by the court: “The doctrine of qualified immunity, when applied properly, protects all but the plainly incompetent or those who knowingly violate the law.” Moreover, to avoid summary judgment under the doctrine of qualified immunity, the court noted the plaintiff had to show the following:

[T]he government official violated a federal right and that, given the circumstances, the right was already clearly established when the official acted.

In addition, to establish a Section 1983 claim for retaliation under the First Amendment, the federal appeals court noted the plaintiff had the burden to establish the following three points:

(1) [H]e engaged in constitutionally protected speech; (2) he suffered adverse conduct that would likely deter a person of ordinary firmness from engaging in such speech; and (3) a causal connection between his protected speech and the adverse conduct.

Causal Relationship

In this particular instance, the appeals court assumed Watkins had sufficiently alleged the first two requirements for his First Amendment retaliation claim; i.e.:

Watkins’s singing constituted protected speech and…the complained-of-trespass warning was a sufficiently adverse act.

Accordingly, the sole issue before the appeals court was “whether a sufficient causal relationship existed between the trespass warning and Watkins’s singing.”

As described by the federal appeals court, a sufficient causal relationship would not exist where the facts alleged in plaintiff’s complaint “show mixed motives (lawful and unlawful motivations) and pre-existing law does not dictate that the merits of the case must be decided in plaintiff’s favor.” Given such mixed lawful and unlawful motivations, a defendant would, therefore, be entitled to qualified immunity and summary judgment.

Accordingly, when “a person is singing a song with lyrics offensive to other people,” it might qualify as protected speech under the First Amendment. Such behavior, however, would “not shield the singer from the otherwise valid consequences of the singer’s separate acts,” in particular, unlaw acts “performed while he was singing.”

Lawful Trespass Warning

In this particular instance, the federal appeals court found: “Watkins has presented evidence that Sullivan had him trespassed-warned because she disliked the lyrics of the song he was singing, an unlawful reason.” Specifically, Watkins had claimed “Sullivan told him expressly that she disliked the song and that she wanted him to leave the park because of the song.”

The appeals court, however, noted Sullivan also had “offered evidence of an alternative lawful basis for having Watkins trespass-warned”:

In Sullivan’s sworn affidavit, Sullivan stated that she observed Watkins turning on the pavilion’s water pipe using his own pair of pliers and observed Watkins plugging a cooking device into the pavilion’s electrical outlet. Sullivan said Watkins had no permit or authorization to use the pavilion’s water and electrical resources.

Similarly, in a sworn affidavit, the appeals court found the responding police officer in this case had similarly stated that “Sullivan reported that Watkins had violated park rules by using the pavilion’s water and electricity.” As a result, the police officer had testified that “he issued a trespass warning based on Watkins’s unauthorized use of the pavilion, not based on Watkins’s singing.”

Moreover, the federal appeals court noted Watkins had admitted that “he used the pavilion’s water and electrical facilities that morning.” Watkins, however, denied “Sullivan saw him do so.” In the opinion of the federal appeals court, “Watkins had no (in reality, can have no) personal knowledge about what Sullivan did or did not see on the pertinent day.”

Unauthorized Park Use

In addition, the court found Watkins had not testified to facts that were “inconsistent with Sullivan’s sworn statement that she observed Watkins using the pavilion’s utilities.” On the contrary, the court noted “Watkins’s admitted use of the pavilion’s water and electricity” that “happened out in the open.” Further, Watkins did not dispute or contest “Sullivan’s sworn statement that she observed him doing so.”

Watkins also had contended that “he did not need a permit to use the pavilion’s water and electrical facilities.” According to Watkins, he had been “told by park management in 2011 that the pavilion and its facilities are open for free use by its patrons except for purposes of an event.” Watkins further claimed that “park management, including Sullivan, had a ‘custom and practice’ of allowing patrons to use the pavilion’s electric and water utilities without a permit for non-event activities.”

Assuming park management did have a “custom of generally allowing non-event patrons to use the pavilion’s utilities without a permit,” the federal appeals court found Watkins’s conduct could still be considered unlawful under the circumstances:

[A] reasonable park employee in Sullivan’s position could have concluded that Watkins’s specific conduct, especially Watkins’s using a pair of personal pliers to turn on the pavilion’s water supply, constituted an unauthorized use of the park’s facilities.

Park Rules

Moreover, “given the pertinent rules and regulations governing the use of Florida’s parks,” the federal appeals court concluded:

[A] reasonable park employee in Sullivan’s place could have determined that Sullivan acted properly in response to Watkins’s specific conduct: properly even if Sullivan herself might also have been subjectively motivated in part by unlawful reasons.

In so doing, the appeals court cited Fort Lauderdale, Florida, Code of Ord. § 19-52 (2015), which made it “unlawful for any person to misuse any public property at the public picnic areas or to fail to comply with the regulations pertaining to such picnic areas.” Further, the court noted Fort Lauderdale, Florida, Parks and Recreation Rules & Regulations 11.3 provided: a person who is found violating park rules “shall be ordered to leave” the park “for a minimum 24-hour period.”

While “Sullivan subjectively might also have been motivated in part by an unlawful reason (her dislike of Watkins’s singing),” the federal appeals court held this fact “does not deprive her of qualified immunity.” On the contrary, the appeals court found the applicable park rules at the time of the incident “did not clearly rule out a valid trespass warning for Watkins in the circumstances facing Sullivan.”

Mixed Motivations

In the opinion of the federal appeals court, the evidence in this case indicated: “Sullivan’s efforts to have Watkins removed from the park were motivated at least in part by a lawful reason”; i.e., “Watkins’s unauthorized manner of use of the pavilion facilities.” Accordingly, the federal appeals court held Defendant Sullivan was “entitled to qualified immunity on a claim for First Amendment retaliation because there existed evidence of both lawful and unlawful motivations for defendant’s conduct.”


The federal appeals court, therefore, held “Sullivan is entitled to qualified immunity” and affirmed the district court’s grant of summary judgment in favor of Defendant Sullivan.

In addition to this particular lawsuit, the federal appeals court cited a number of civil actions filed by Watkins in federal court, which had featured this same song alleging violations of the First Amendment, including: Watkins v. Dubreuil, 820 F. App’x 940 (11th Cir. 2020); Watkins v. Pinnock, 802 F. App’x 450 (11th Cir. 2020); Watkins v. Cent. Broward Reg’l Park, 799 F. App’x 659 (11th Cir. 2020); Watkins v. Bigwood, 797 F. App’x 438 (11th Cir. 2019); Watkins v. U.S. Postal Emp., 611 F. App’x 549 (11th Cir. 2015).

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason UniversityLaw review articles archive (1982 to present)