Date: Sep 16, 2026

Procedural Due Process for Municipal Trespass Warnings Requires a Meaningful, Standards-Guided Post-Deprivation Appeal—Even When Substantive Due Process Fails

I. Introduction

Case: Jesse Lee v. City of Gulfport (11th Cir. 2026-09-15) (per curiam; not for publication).
Parties: Jesse Lee (Plaintiff-Appellant) vs. City of Gulfport and City Manager James O’Reilly (Defendants-Appellees).
Core dispute: Whether two written, “indefinite” trespass warnings barring Lee from the City Hall Complex (with limited exceptions) violated substantive and/or procedural due process.

The City, at the City Manager’s behest, had police issue warnings after two incidents at the Building Department (a 2020 door-button disturbance during COVID-19 and a 2021 refusal to leave). The warnings barred Lee from returning to the City Hall Complex except to attend City Council meetings and to conduct in-person business if accompanied by a police escort. The warnings did not state appeal rights or procedures. A later 2023 trespass arrest at the Gulfport Casino was background only.

The appeal presented two constitutional questions: (1) whether the warnings were so arbitrary as to violate substantive due process, and (2) whether the City provided constitutionally adequate notice and a meaningful opportunity to be heard (procedural due process), particularly given the “indefinite” nature of the warnings and the City’s later-adopted appeal directive.

II. Summary of the Opinion

Substantive due process: Affirmed summary judgment for the City and City Manager. The restrictions did not “shock the conscience” because they were not a total ban; Lee could still attend City Council meetings and could do City Hall business with a police escort.
Procedural due process (existence of a remedy): Affirmed in part. The court held that the City did provide a post-deprivation appeal process via Written Directive 406.08 (issued January 2022) and Lee consciously chose not to use it.
Procedural due process (adequacy of the remedy): Vacated in part and remanded. The district court erred by treating failure of substantive due process as dispositive of procedural due process. On remand the district court must analyze whether the appeal procedure was “meaningful,” given (a) the City Manager’s dual role as both the complainant who sought the warnings and the adjudicator of appeals, and (b) the directive’s lack of standards guiding review.

III. Analysis

A. Precedents Cited

1. Standards of review and procedural posture

The court applied de novo review of summary judgment, citing Fernandez v. Seaboard Marine Ltd., 135 F. 4th 939, 947 (11th Cir. 2025), consistent with the appellate court’s obligation to independently determine whether genuine disputes of material fact exist and whether the moving party is entitled to judgment as a matter of law.

2. Substantive due process: “shocks the conscience” for executive action

The Eleventh Circuit framed Lee’s substantive due process challenge under the executive-action “shocks the conscience” test from Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998), as reaffirmed in Henry v. Sheriff of Tuscaloosa Cnty., 180 F.4th 1294, 1301 n.2 (11th Cir. 2026) (en banc). This matters because the substantive due process bar is deliberately high: not every unfair or even irrational executive decision becomes a constitutional tort.

The court recognized (via Catron v. City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir. 2011)) a liberty interest in being in parks or other city lands open to the public, while also noting Catron’s principle that a person may forfeit the interest by trespass or other violation of law. But it emphasized that Lee’s reliance on Catron was largely misplaced because the quoted language about post-deprivation procedures is a procedural due process concept, not substantive due process.

To sharpen the substantive/procedural distinction, the court cited Zinermon v. Burch, 494 U.S. 113, 125 (1990), explaining that substantive due process bars certain arbitrary government actions “regardless of the fairness of the procedures,” while procedural due process focuses on deprivation “without due process of law.” It also referenced Bettendorf v. St. Croix Cnty., 631 F.3d 421, 426 (7th Cir. 2011), for the warning that the two doctrines are often confused but analytically distinct.

On the merits, the court contrasted the warnings with unlawful “banishment,” citing Baldwin v. Alsbury, 223 So. 2d 546, 547 (Fla. 1969), where an indefinite stay-out-of-town condition exceeded judicial power. It then invoked Littlejohn v. School Bd. of Leon Cnty., 132 F.4th 1240 (11th Cir. 2025), for the proposition that only “the most egregious” executive conduct is arbitrary in the constitutional sense. Because Lee retained access for council meetings and City business (with escort), the restrictions did not rise to conscience-shocking banishment.

The opinion noted—without reaching—the City’s argument that the City Hall Complex is a non-public forum, citing Daniel v. City of Tampa, 38 F.3d 546, 549-50 (11th Cir. 1994) (a First Amendment forum analysis case). The court’s refusal to rely on forum doctrine underscores that the due process analysis proceeded from liberty-interest and procedures principles rather than speech-forum categories.

3. Procedural due process: notice and meaningful opportunity to be heard

The court returned to first principles: procedural due process requires notice and an opportunity to be heard, citing United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993). It reiterated that the liberty interest recognized in Catron v. City of St. Petersburg triggers procedural protections and rejected the notion that later criminal trespass proceedings are an adequate substitute, quoting Catron, 658 F.3d at 1268.

The court also cited Benning v. Comm'r, Ga. Dept. of Corr., 71 F.4th 1324, 1332-33 (11th Cir. 2023), to reinforce the broader point: once a cognizable liberty interest exists (including one grounded in other constitutional provisions), procedural safeguards attach.

For the “meaningful time and meaningful manner” requirement, the court cited Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Although the opinion did not conduct a full Mathews balancing test, it used Mathews as the doctrinal anchor for its concern that an appeal process can exist on paper yet still fail constitutional adequacy if it is not meaningfully structured and impartial.

4. Bias/dual roles and the presumption of integrity

The court flagged the City Manager’s dual role as both (i) the official who requested the trespass warnings and (ii) the appeal decisionmaker under Directive 406.08. It cited Withrow v. Larkin, 421 U.S. 35, 47 (1975), which recognizes a presumption of honesty and integrity in adjudicators even when investigative and adjudicative functions combine, while acknowledging that due process can still be violated when the risk of bias becomes constitutionally intolerable.

It also cited Sheldon v. S.E.C., 45 F.3d 1515, 1519 (11th Cir. 1995), for the proposition that agencies can combine functions so long as employees do not serve in dual roles—supporting the court’s view that the particularized “same person as complainant and adjudicator” feature may matter.

5. Standards guiding administrative discretion

While acknowledging that administrative due process need not mimic courts (Dixon v. Love, 431 U.S. 105, 115 (1977)), the Eleventh Circuit expressed concern not about flexible standards but about the absence of standards. It contrasted this situation with vagueness challenges where some standard exists, citing Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1378-79 (11th Cir. 1994).

Most importantly, it relied on Barnes v. Merritt, 376 F.2d 8, 11 (5th Cir. 1967), for the proposition that “the lack of ascertainable standards is a violation of due process actionable” under § 1983—here used to support the remand for deeper analysis where Directive 406.08 supplies no review criteria.

B. Legal Reasoning

1. Why the substantive due process claim failed

The court treated the trespass warnings as executive action and applied the demanding “shocks the conscience” test. It rejected Lee’s attempt to convert missing notice and appeal instructions into a substantive due process defect. Those omissions speak to procedure, not the substantive arbitrariness threshold.

On Lee’s strongest substantive point—indefinite duration—the court reasoned the warnings were not effectively permanent banishment because they preserved meaningful channels of access (City Council attendance and escorted City business). Therefore, even if the warnings were strict or indefinite in text, their practical reach was limited enough to fall short of conscience-shocking conduct under Cnty. of Sacramento v. Lewis and Littlejohn v. School Bd. of Leon Cnty..

2. Why part of the procedural due process claim survived (and required remand)

The district court had held procedural due process failed simply because substantive due process failed—reasoning that absent a substantive constitutional violation there was no liberty interest deprivation and thus no procedural due process problem. The Eleventh Circuit corrected this as a category error: a government action can be non-conscience-shocking (substantively permissible) yet still require constitutionally adequate procedures if it burdens a protected liberty interest.

Applying Catron v. City of St. Petersburg, the court reaffirmed that a liberty interest exists in access to public property open to the general public, and that when pre-deprivation hearings are impractical, post-deprivation procedures are necessary.

The court split the procedural due process claim into two analytically distinct questions:

Was there any post-deprivation remedy at all? Yes—Directive 406.08 (January 2022) created an appeal to the City Manager for trespass warnings on public property/public buildings. Lee admitted he knew of the remedy and deliberately chose not to appeal because he objected to O’Reilly hearing it. On that narrow point, the City was entitled to summary judgment.
Was the remedy constitutionally adequate (meaningful and fair)? That question required more analysis. The court identified two potential deficiencies:
- Impartiality concern: O’Reilly’s dual role as complainant (requesting the warnings) and adjudicator (deciding the appeal) may undermine the “meaningful” opportunity to be heard, depending on the realistic risk of bias under Withrow v. Larkin and related authority.
- Standards concern: Directive 406.08 contained no standards guiding the City Manager’s review. O’Reilly’s deposition suggested an ad hoc approach (“continuing to sustain the behaviors that have created it”), and he could not articulate how other warnings or timing would affect decisions. The complete absence of ascertainable standards, especially when combined with the dual-role issue, raised a due process red flag under Barnes v. Merritt.

The court also highlighted uncertainty about additional review. It noted Gulfport City Code § 22-17.15 permits appeals of City Manager decisions “as otherwise provided” in the Code, and that O’Reilly testified a City Council appeal could occur. But the Eleventh Circuit could not locate an ordinance specifying how a trespass-appeal decision would be appealed, contrasting the explicit Board of Adjustment review structure for zoning decisions in Gulfport City Code § 22-11.03(1). The City’s failure to identify the mechanism amplified the remand’s focus: due process is not satisfied by an opaque or undefined path of review.

C. Impact

Although “NOT FOR PUBLICATION” limits formal precedential weight, the opinion signals several practical and doctrinal consequences for municipalities and litigants in the Eleventh Circuit:

Decoupling of claims: Courts must not treat rejection of a substantive due process claim as automatically disposing of a related procedural due process claim. Plaintiffs can lose on “shocks the conscience” yet still litigate whether they received constitutionally adequate notice and an opportunity to be heard.
Meaningful appeals must be structured: Municipal trespass-warning regimes should not merely offer an “appeal”; they should define (i) who hears it (preferably not the initiating complainant), (ii) what standards govern, and (iii) what further review exists (administrative and/or judicial). The opinion highlights how “indefinite” exclusion orders heighten the importance of a robust post-deprivation process.
Risk management for § 1983 exposure: The combination of (a) indefinite bans, (b) lack of written appeal instructions on the warning itself, (c) complainant-as-adjudicator design, and (d) no standards invites procedural due process litigation even when substantive due process is unlikely to succeed.
Record-building on remand: Future cases will likely focus on evidentiary showings about bias risk, actual practice of appeals, availability and clarity of further review (including whether and how City Council decisions are judicially reviewable), and whether standards can be identified via ordinance, policy, custom, or consistent practice.

IV. Complex Concepts Simplified

Substantive due process (“shocks the conscience”): A limit on what government can do. For executive actions, only extreme, egregious conduct qualifies—conduct so arbitrary it “shocks the conscience” (Cnty. of Sacramento v. Lewis).
Procedural due process (notice and opportunity to be heard): A requirement about how government makes and reviews decisions that burden life, liberty, or property. Even if the decision is substantively permissible, it can still be unconstitutional if made/maintained without adequate procedures (Zinermon v. Burch; United States v. James Daniel Good Real Prop.).
Post-deprivation remedy: A chance to challenge a government action after it happens. When pre-deprivation hearings are impractical (as with on-the-spot trespass warnings), due process can be satisfied by a prompt, meaningful, and fair post-deprivation procedure (Catron v. City of St. Petersburg).
Meaningful manner / meaningful time: A hearing must be more than formal. It must offer a real chance to influence the outcome and must occur at a point when it can still matter (Mathews v. Eldridge).
Dual-role decisionmaker / bias concern: Due process generally presumes officials act with integrity, even if they have multiple roles. But the risk becomes problematic when the same person effectively acts as both accuser and judge in the same matter, depending on context (Withrow v. Larkin; Sheldon v. S.E.C.).
Ascertainable standards: Rules or criteria guiding decisions. Due process concerns increase when an official has unfettered discretion with no stated standards—especially for licenses or exclusion orders (Barnes v. Merritt).
Qualified immunity (context in this case): A doctrine shielding officials from damages unless they violated clearly established law. The opinion’s key point is logical sequencing: the district court’s rejection of substantive due process did not automatically extinguish the procedural due process analysis, which must be addressed on its own terms.

V. Conclusion

The Eleventh Circuit held that the City’s “indefinite” trespass warnings did not amount to conscience-shocking executive action and thus did not violate substantive due process. But it also held the district court erred by collapsing procedural due process into substantive due process. Even where a restriction is not substantively outrageous, it may still burden a protected liberty interest and therefore must be accompanied by constitutionally adequate procedures.

The case’s central takeaway is the court’s insistence on a meaningful post-deprivation appeal for municipal trespass warnings—one that is not merely nominal, but is structured to be fair (including attention to bias risks) and guided by ascertainable standards. On remand, the adequacy of Gulfport’s Directive 406.08 process—particularly the City Manager’s dual role and the absence of standards—will determine whether Lee’s procedural due process claim can proceed.