dissenting and concurring:
I
Under the doctrine of qualified immunity, a government official performing discretionary functions is protected from personal liability to the extent that his “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Only if the law was “clearly established” at the time of the purported offense will the immunity defense fail, “since a reasonably competent public official should know the law governing his conduct.” 457 U.S. at 818-19, 102 S.Ct. at 2738-39.
At the time of the public hearing, the law was clearly established that the First Amendment prohibits state action that imposes content-based restrictions on speech. See, e.g., Police Dep’t v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d 212 (1972). Where speech is allowed in a public arena, the government may impose valid time, place, and manner restrictions but the restrictions must be content neutral. Heffron v. International Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647-48, 101 S.Ct. 2559, 2563-64, 69 L.Ed.2d 298 (1981).
Content-based restrictions may be imposed, however, where there is “a clear and present danger that [the speech] will bring about the substantive evils that [government] has a right to prevent.” Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919). The substantive evils which warrant suppression of speech must “rise far above public inconvenience, annoyance, or unrest.” Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949); see also City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 2509, 96 L.Ed.2d 398 (1987).
Maryland law implements the protection afforded by the First Amendment. It clearly defines the authority of a presiding officer when a public body meets in open session: “If the presiding officer determines that the behavior of an individual is disrupting an open session, the public body may have the individual removed.” Md. State Gov’t Code Ann. § 10-507(b)(l) (1984). There can be little doubt that Gott knew or should have known that expulsion of Collinson, unless he was disruptive, would “violate clearly established statutory or constitutional rights.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.
I agree with the district court that a genuine issue of material fact exists concerning the necessity of silencing Collinson. Since Collinson did not exceed his allotted time of two minutes, Gott’s action cannot be construed as a valid time restriction. Gott averred in his affidavit that he feared a disturbance would result if he did not ban the discussion of certain subjects. Yet, in Gott’s deposition, he testified that he did not silence Collinson because he feared disorder. He added if he did not prevent Collinson from discussing “personalities,” all of the other speakers would attempt to discuss “personalities.”
A jury could find that Gott silenced Col-linson because he objected to the content of Collinson’s speech. Other issues are whether Gott warned against discussing personalities and whether Collinson’s speech and the attendant atmosphere at the meeting should have induced a presiding officer reasonably to have believed that it was necessary to silence Collinson by expulsion in order to avert disruption or an immediate threat to public peace. See Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738-39; see also Cantwell v. Connecticut, 310 *1012U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213 (1940); Stromberg v. California, 283 U.S. 359, 368-69, 51 S.Ct. 532, 535-36, 75 L.Ed. 1117 (1931); Schenck, 249 U.S. at 52, 39 S.Ct. at 249.
Because the evidence concerning these issues is in conflict, I would affirm the district court’s order denying Gott’s motion for summary judgment seeking qualified immunity.
II
There never was an issue in this case about absolute immunity. Gott did not claim absolute immunity in the district court. The district judge never discussed absolute immunity. Instead, it decided the motion for summary judgment on the basis of Gott’s lack of qualified immunity. On appeal Gott did not seek to make absolute immunity an issue. He never claimed it. The parties did not brief whether he was, or was not, entitled to its protection.
Gott’s counsel cannot be faulted for not raising the issue. Maryland law does not accord the presiding officer of a public body absolute immunity for expelling a citizen from an open session. Collinson has called our attention to Md. State Gov’t Code Ann. § 10-507 (1984), which provides:
(a) In general. — Whenever a public body meets in open session, the general public is entitled to attend.
(b) Removal of individuals. — (1) If the presiding officer determines that the behavior of an individual is disrupting an open session, the public body may have the individual removed.
(2) Unless the public body or its members or agents acted maliciously, the public body, members, and agents are not liable for having an individual removed under this subsection.
The parties had no cause to brief whether a federal court should disregard this provision of Maryland law when considering the question of absolute immunity. It is clear, however, that the Maryland legislature does not perceive the dire consequences that sometimes color claims that absolute immunity is essential for the conduct of public affairs.
Generally courts will not decide issues that were never raised. On occasion, when a question of extraordinary importance arises that was not considered by the parties, a court will address it. But even then the court should afford the parties the opportunity to brief it. See, e.g., Schlesinger v. Councilman, 420 U.S. 738, 743-44, 95 S.Ct. 1300, 1305-06, 43 L.Ed.2d 591 (1975). Collinson was never given an opportunity to debate the argument that Gott is entitled to absolute immunity. Nevertheless, he now finds his action defeated in part for reasons that are foreign to the case.
Ill
I concur in the judgment absolving the other defendants from liability.