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Timothy M. Osmar v. City of Orlando

February 23, 2012

TIMOTHY M. OSMAR, PLAINTIFF,
v.
CITY OF ORLANDO, DEFENDANT.



ORDER

This matter comes before the Court without a hearing on the Motion for Recusal (Doc. 14) filed by the Defendant, the City of Orlando (henceforth, the "City"), and the response in opposition (Doc. 16) filed by the Plaintiff, Timothy Osmar (henceforth, "Osmar").

I. Background

According to the allegations of his Complaint (Doc. 1), Osmar is an activist, affiliated with a group popularly known as "Occupy Wall Street". He has been arrested twice for writing messages in chalk on Orlando sidewalks. In both instances, he was charged with violating Section 43.71 of the City Code of the City of Orlando, which makes it unlawful for any person "to write, print, mark, paint, stamp or paste any sign, notice or advertisement upon the surface of any sidewalk or paved street in the City." (Doc. 1 at 4). He contends that the messages he wrote (or, in some cases, would have written, had he not been arrested first) were political in nature, such as "Justice Equals Liberty," "It's Beginning to Look a Lot Like a Police State," and "All I Want for Christmas is a Revolution." (Doc. 1 at 4). After the arrests, the charges were dropped.

Osmar filed this suit on February 6, 2012. He argues that the arrests violated his rights under the First Amendment, because his activities involved political speech rather than the commercial and other speech targeted by Section 43.71.

On February 17, 2012, the City filed the instant motion, requesting that I recuse myself pursuant to 28 U.S.C. § 455(a).

II. Legal Standards

"The right to a fair and impartial trial is fundamental to the litigant; fundamental to the judiciary is the public's confidence in the impartiality of our judges and the proceedings over which they preside." United States v. Jordan, 49 F.3d 152, 157 (5th Cir.1995). "Justice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13.

Judicial recusal is governed by 28 U.S.C. § 455, which provides in pertinent part that "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The standard for determining the propriety of a recusal is whether a reasonable person, fully informed of the relevant facts, would question the judge's impartiality. Parrish v. Board of Commissioners, 524 F.2d 98, 103 (5th Cir.1975). Cases within § 455(a) are extremely fact-driven, and must be judged on their unique facts and circumstances more than by comparison to situations considered in prior jurisprudence. United States v. Jordan, 49 F.3d at 157. If the question of whether § 455(a) requires disqualification is a close one, the balance tips in favor of recusal. United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir.1993).

Section 455 (a), however, must not be construed so broadly that it becomes presumptive, and recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.

Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986). A judge, having been assigned to a case, should not recuse himself on unsupported, irrational, or highly tenuous speculation. If this occurred, the price of maintaining the purity of the appearance of justice would be the power of litigants or third parties to exercise a veto over the assignment of judges. U.S. v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986).

III. Analysis

The City seeks recusal pursuant to 28 U.S.C. § 455(a). The only basis for recusal cited is the fact that I have recused myself from a number of other cases involving the Orlando Police Department ("OPD"). However, those cases are materially different from this one, and the basis for my recusal in those cases is not present in this case.

About nine years ago, my youngest son was roughed up by an OPD officer. Although I did not witness it, I believed then and remain convinced that the officer used excessive force and that OPD did nothing to hold him accountable for it. Subsequently, I recused myself pursuant to 28 U.S.C. § 455(a) from some cases in which the City or OPD were parties.*fn1

On January 4, 2010, in another case in which the City was a party, I entered an order that ...


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