A federal appeals court held that a man who was kicked out of a school board meeting for making threatening remarks was protected by the First Amendment, but the question of whether he could sue school officials still needs to be hashed out.

The U.S. Court of Appeals for the Third Circuit on Thursday affirmed in part and vacated in part the dismissal of John Barna's case against the Panther Valley School District board of directors. The circuit court held that the board members were entitled to qualified immunity in their individual capacity, but remanded the case for further proceedings to answer the question of whether they were immune in their official capacities.

Barna was thrown out of an April 2010 school board meeting discussing a contract he thought was a waste of money, according to Third Circuit Judge Michael A. Chagares' opinion. Barna suggested that next time, he'd bring his friends to the meeting and told the directors, “You wouldn't like that. Some of my friends have guns.”

Taking that as a threat, board member Jeffrey Markovich expelled Barna from the meeting. While leaving the meeting, Barna said, “'Don't laugh, I may have to come after all of yous,'” according to Chagares.

After suing the school board for categorically banning him from attending future school board meetings, a Middle District judge ruled that the officials were immune from suit, even though the judge held that the ban violated Barna's constitutional rights.

On appeal, Barna said the court was wrong to grant the school board members immunity in any capacity, arguing primarily that he had a right to attend school board meetings. However, Chagares said in upholding the grant of immunity on an individual basis that the law was hazy as to that purported right.

“We therefore conclude that, given the state of the law at the time of the board's ban, there was, at best, disagreement in the courts of appeals as to the existence of a clearly established right to participate in school board meetings despite engaging in a pattern of threatening and disruptive behavior,” Chagares said.

As for immunity in the board's official capacity, the question was somewhat trickier.

“The Supreme Court in Owen v. City of Independence held that municipalities do not enjoy qualified immunity from suit for damages,” Chagares said, “The district court overlooked the Supreme Court's precedent in Owen and improperly awarded qualified immunity to the board. In his opening brief to this court, Barna appealed this ruling generally, but made no arguments specific to the board entity, did not distinguish among the defendants, and did not cite Owen as controlling authority. The board, by contrast, concedes that qualified immunity does not shield municipal entities under Owen but maintains that it is entitled to immunity because Barna failed to preserve the issue by not addressing it before the district court or in his opening brief to our court.”

However, Chagares said there were exceptional circumstances that saved Barna's generic argument, namely the fact that there was no argument over Owen's applicability at the lower level.

“The public interest would be better served by addressing the Owen issue than by ignoring it,” Chagares said.

Barna is represented by Tamaqua-based lawyer Gary D. Marchalk; Thomas A. Specht of Marshall Dennehey Warner Coleman & Goggin in Scranton represented the board. Neither responded to requests for comment.