Less than one year after the City of Bisbee paid a local videographer to settle a false arrest lawsuit, the same man appears poised to become involved in new litigation stemming from his efforts to address an upcoming ballot measure during the Call to the Public at a recent city council meeting.
Nolan B. Gouguet sued Bisbee and several employees in federal court last year after the city’s animal control officer told police dispatch back in June 2020 that Gouguet was interfering with her duties. Video taken by Gouguet and another resident showed a different set of facts during the incident which left Gouguet with a concussion and $15,000 in medical bills after being arrested by two Bisbee police officers.
A notice of settlement was filed in U.S. District Court just four months later. The City and / or its insured paid Gouguet $75,000.
Now there is a good chance Gouguet is headed back to court after he accused the city’s contracted attorney of unlawfully interfering with Gouguet’s ability to speak during the council’s Call to the Public about an upcoming vote on increasing the city’s spending limit.
Gouguet posted video on his YouTube channel of one of his recent Call to the Public efforts. Then on the morning of June 30, he filed a complaint via email with Bisbee’s City Clerk about the conduct of City Attorney Joseph D. Estes, a private lawyer who provides the city’s legal services.
In the complaint, Gouguet challenged Estes’ actions in blocking comments during a recent Call to the Public about the Aug. 2 ballot measure known as Home Rule. Gouguet has also made personal comments about Estes and his handicapped son.
A few hours later, Estes responded by email, calling Gouguet’s statements “false and defamatory” and demanded a retraction. Otherwise, Estes threatened, “necessary legal action will be initiated without further notice.”
It is clear from Estes’ response that he took both professional and personal offense at Gouguet’s comments, particularly those related to the attorney’s son. He also challenged the videographer’s motives.
“Shame on you for trying to use my handicap son in an attempt to impugn my professional integrity and to promote your contorted political agenda to disband all law enforcement,” Estes wrote. “That is what this is really all about, you attempting to silence anyone that supports law enforcement and the rule of law, disagrees with you or calls you out when you are wrong.”
In Arizona, city and town councils are not required to offer a Call to the Public segment during council meetings. But if they do, Open Meeting Laws require officials to give speakers a wide berth in an effort to not interfere with free speech.
However, there is also Arizona Revised Statute 16-192 which states “any public agency” shall not spend or use public resources “to influence an election.” Estes contends that state law means the Bisbee City County cannot allow citizens to speak during Call to the Public for or against the upcoming Home Rule vote.
“The bottom line is – it is not appropriate or legal for the City to let you, or anyone else for that matter, use City resources to support or oppose any position on a current ballot measure, whether that is for the home rule option or for a specific candidate or any other current ballot measure,” the attorney wrote.
Estes’ email went on to quote from The Breakfast Club when he wrote “don’t mess with the bull young man, you’ll get the horns.”
Gouguet’s attorney, Sandy Russell, fired back at Estes in three emails. She argued that the statute Estes relied on does not apply to situations in which the public body itself “remains impartial and the events are purely informational” while providing an equal opportunity to all viewpoints.
“I cannot fathom why anyone would ever think that there would be a law in a democracy that prohibits the constituents from addressing their elected officials on pending legislation,” Russell noted in a June 30 email. “Such a law would not pass constitutional muster under even the strictest scrutiny.”
Russell went on to question whether the council had approved of Estes’ threat of legal action.
“The City might want to consider the ramifications of denying its constituents free speech and threatening them with lawsuits, if in fact the City approved this email to be sent on its behalf,” she wrote. “Further, it appears to be first amendment retaliation in response to Mr. Gouguet’s complaint against Mr. Estes.”
Russell also wrote in one email that Arizona law contains some restrictions on what members of a public body can say in response to Call to the Public but nothing in statute prohibits a public body from listening.
“The call to the public has always been the time for the public to express their opinions and viewpoints regarding pending legislation or other matters before a governing body,” she added. “All of us have an obligation to ensure that democracy is protected in this way, and anyone who does not support free speech and access to our elected officials is a threat to our democracy.”
City officials have until close of business on July 8 to respond to Russell on whether Estes’ threat of litigation was on behalf of the city.
Gouguet is known in Bisbee for his YouTube videos, many of which have an anti-police slant. He recently posted a video after following Police Chief Albert Echave around town for 20 minutes highlighting the frequency with which the chief spits.
But his most viewed video involved the June 2020 incident when Gouguet was at a city park filming an interaction between a local resident and the city’s then-animal control officer (ACO). Although he was about 20 feet away, the ACO demanded Gouguet leave the area, which included a public sidewalk.
The video went viral because it showed the disparity between the ACO’s “emergency” radio call and her official statement to police compared to what really happened. Another video filmed by a concerned citizen shows Gouguet taken to the ground face first by Bisbee officers who never gave him any warning or commands despite the fact he did not pose an immediate threat to anyone.
In another recent video, Gouguet filmed a longtime Bisbee police officer during an award ceremony. The officer becomes emotional when talking about responding to a fire call involving his son’s grandmother.
Gouguet titled the video “Cop Cries Like a Toddler” and includes a snide comment concerning the officer’s award. The officer took part in Gouguet’s 2020 arrest at the park.
