Cape Coral man removed from meeting over Jaycee Park, now city faces 'legally shaky ground'

Uniformed Cape Coral police officers surrounded Cape Coral resident Scott Kempe, one pulling his arms behind him and locking on a pair of handcuffs, guiding him from council chambers as dozens of people looked on.

The recent arrest inside Cape Coral Council Chambers raises questions and concerns that Kempe's First Amendment rights were violated, leaving the city with legal tremblors.

"The City Council is on very shaky ground with this," Florida Gulf Coast University Professor Pamella Seay said. "If I were their attorney, I would caution them that if they continue keeping this gentleman out of the meetings, that any decision they make, related to the topic on which he wishes to speak, may be tainted, and it might not be valid, because what they have done is a constitutional violation of this gentleman's rights to be in the meeting."

Cape Coral Spokesperson Melissa Mickey responded via email and said the city would not comment on matters of potential litigation. Mayor John Gunter did not respond to requests for comment as of Friday morning.

Kempe, 77, was arrested and removed from council chambers on Dec. 13, a repeat of an incident two months earlier. Kempe said he was "falsely arrested" and argued that Gunter acted out of line and violated his constitutional rights.

These past few months have been a rollercoaster for Kempe as he feels misrepresented by the community and media.

He said his recent removals distract from the real issue: the unwanted Jaycee Park improvements costing millions.

"The focus of attention was never supposed to be me," Kempe said. "It was a spur of the moment. I just got so pissed off, and I wanted to do something to demonstrate my feelings without disrupting the meeting or causing a problem."

The 12-year Cape Coral resident said he only recently started attending council meetings when he learned about the proposed Jaycee Park designs.

"I just do what I think," Kempe said. "And at least if we lose Jaycee Park, and it becomes a commercial endeavor, at least I can't say I didn't try."

Previous Coverage Cape Coral resident removed from council chambers again, legal action planned against city

More Cape Coral councilmember news Former Cape Coral Councilwoman Patty Cummings pleads not guilty to charges in election fraud

Jaycee Park

At an Oct. 11 meeting, Kempe, like many other residents who live on Beach Parkway, spoke and filled council chambers to express their disapproval over the council moving forward with new designs for Jaycee Park that would radically alter the neighborhood park.

Pennoni Associates, a consulting engineering firm, has been contracted for the preliminary and updated designs, which currently include two docks, both at the north and south ends, for 24 boat slips, a splash pad, a bistro/piazza area, and a bandshell.

Improvements to the park are estimated to cost $12 million for construction, and the city plans to issue a long-term bond to pay for the project, which means the cost will be borne by city residents and future residents.

Many residents, including Kempe, used the one-hour public comment time to ask the council to stop with these plans. Kempe, however, wasn't satisfied with the council's discussion on the issue where many members expressed their willingness to move forward.

As a form of protest, he turned his back on the council and knelt on his seat.

"I responded, 'You turned your back on us, so I'm turning my back on you,'" Kempe said.

Gunter had noticed Kempe while Councilmember Tom Hayden was in deep discussion and stopped the meeting to ask Kempe to fix his posture. He refused and police officers removed him.

Kempe said he wasn't disrupting the meeting.

"The only people who knew that I had turned around were the immediate people in my vicinity who could see it, but everybody else in the entire room had absolutely no idea," Kempe said.

The arrest at the last meeting

This move by the mayor barred Kempe from attending future meetings. Officers asked him to preemptively leave a meeting by police officers a week later on Oct. 18.

In that meeting, the council voted 7-1 — Councilmember Jessica Cosden against — to move toward final designs for the park.

Kempe then submitted a formal email asking to be allowed to attend future meetings.

However, after receiving an email from Gunter, Kempe's attitude on the situation changed completely.

The emails included the provision:

Any person who engages in behavior that is prohibited herein and/or who is boisterous or disruptive in any manner to the conduct of a meeting shall be asked to leave by the presiding officer and may be escorted from the meeting room by the Police Department. Any person so removed from a council meeting shall be barred from further attendance at that Council meeting unless expressly permitted to return by a majority vote of the City Council.

Kempe argues against the city's interpretation of the rule and said because the language specifies "at that council meeting," he shouldn't have been removed from future meetings.

He went to the meeting on Dec. 13 and defended his right to stay when officers confronted him while he waited in line for public comment.

However, the police officers and officials did not agree, and he was arrested.

First amendment violation

Kempe believes his rights were violated.

Seay, the professor and an expert in criminal, constitutional, aviation, and international law, said the resident has valid points.

"We need to be able to express ourselves whenever there's going to be a decision made by the government, and we need to have input on that," she said.

A meeting of a board, council, or commission is considered a limited public forum, where governments can have rules about certain kinds of speech or expression.

Seay cited Acosta v. City of Costa Mesa. The case involved a member of the public being removed from a city council meeting for “disorderly, insolent, or disruptive behavior.”

"In the First Amendment, in the instance of a limited public forum, a person can be removed from the meeting that they are disrupting," Seay said

However, she said that since the resident's actions weren't disorderly, threatening, or disruptive to the meeting or those around him, the mayor shouldn't have had him removed.

"(The mayor) should have let it go, but since he didn't, I think he caused a problem," Seay said. "(Kempe) merely turned his back on the commission, that is not sufficient (for removal) from the general description that I've found in any of the First Amendment cases."

She also believes the rules the city cited are vague and took issue with the city barring him from future meetings.

"But barring them from future meetings is generally not considered appropriate or constitutional, so they may have gone beyond in this particular instance," Seay said.

Cape Coral council is slated to discuss the rules at the first committee of the whole meeting after the winter hiatus, and Seay said they should get a third party to ensure similar incidents don't happen.

"I'm of the opinion that the Cape Coral City Council needs to refine its rules and get a consultation with a constitutional attorney to ensure that they are not in violation because, from all appearances on this particular issue, they have gone beyond what the Constitution would allow," Seay said.

Additionally, Seay said there is a chance that past decisions approved by the council could become void if the city did indeed violate his rights.

"Keeping this gentleman out of the meetings, that any decision they make, related to the topic on which he wishes to speak, may be tainted, and it might not be valid," Seay said.

Seay believes Kempe should find a good constitutional lawyer and seek court intervention.

"If I was him, I would seek a court order that would stop the council from convening or meeting until he is allowed back in," Seay said.

Kempe said the council is not listening to its residents

Kempe is due to appear in court on Jan. 2. In the meantime, he continues his search for a lawyer to take legal action against the city.

When looking at the state of the nation and what's happening to the average man's ability to enact change, Kempe said he can't help but see it hindering local government.

On the same night he was arrested this month, the council voted and approved monthly stipends ranging from $3,333 for council members to $5,000 for the mayor without any discussion.

"But it's now filtered down to a community of a couple of 100,000s and where a mayor in the same night can deprive me of my rights and have me falsely arrested, and award himself $60,000 for the effort," Kempe said.

Kempe said there's no saving this council and believes the electorate needs to vote the members out.

"The people of Cape Coral in no way are represented by their elected officials," Kempe said.

Luis Zambrano is a Watchdog/Cape Coral reporter for The News-Press and the Naples Daily News. You can reach Luis at Lzambrano@gannett.com. Follow him on Twitter @Lz2official.

This article originally appeared on Fort Myers News-Press: Could Cape Coral be in legal trouble over man's meeting removal?