Sharon Dorsett, as administratrix of the estate of her daughter Jo’Anna Bird, and her attorney Frederick Brewington filed a First Amendment retaliation claim against the County of Nassau after settling a previous lawsuit regarding Bird's death. They alleged that the County intentionally delayed the approval of their settlement as retaliation for their protected First Amendment activities, which included Brewington's public opposition to a controversial legislative redistricting plan. The district court dismissed their claim, determining that the plaintiffs lacked standing and failed to state a viable claim. Upon appeal, the court affirmed the dismissal, reasoning that the plaintiffs had no entitlement to timely approval of the settlement, which was contingent upon both the county legislature's and the court's approval. The background included the murder of Jo’Anna Bird in March 2009 and the subsequent civil rights action filed by Dorsett in March 2010, which led to the negotiated settlement in July 2011 that required legislative approval.
In June, Brewington initiated a federal lawsuit, Boone et al. v. Nassau County Legislature et al. No. 11‐cv‐02712, challenging the redistricting plan. During the 2011 election campaign, he requested federal election observers from the U.S. Attorney for the Eastern District of New York due to allegations of racial harassment by campaign workers, which garnered significant local media attention. As presiding officer, Schmitt had the authority to schedule a vote on the Dorsett settlement, yet it remained unresolved in November. In a television interview, Schmitt expressed discomfort voting on the settlement, citing a pending lawsuit (Boone case) and stated he sought an ethics opinion to ensure no conflict existed, despite having received this opinion two months prior. Plaintiffs allege Schmitt's request for the ethics opinion was a tactic to delay the settlement in retaliation for their political activities, resulting in an $8 million loss in settlement value due to changing interest rates. The settlement terms remain undisclosed, but typically involve either fixed payment structures or annuities, impacting the risk borne by the plaintiff and their attorney.
The court reviewed the dismissal under Rule 12(b)(6) and reiterated the requirements for a First Amendment retaliation claim. The district court found that the Plaintiffs failed to demonstrate an injury. Though the court recognized tension in First Amendment standing cases, it clarified that a plaintiff can have standing if they show their speech was adversely affected or if they suffered other concrete harms. The court determined that the alleged retaliation did not inhibit the Plaintiffs' speech, as Brewington remained politically active and Dorsett continued her association with him. The court also concluded that the delay in settlement approval did not constitute a concrete injury, emphasizing that there was no obligation for the legislature to act by a specific date or to approve the settlement. Consequently, the district court's order was affirmed.
