Government officials are not allowed to pursue personal vendettas or retaliate against people for criticizing their policies. But that is precisely what is happening in the town of Parksley on Virginia’s Eastern Shore, where out-of-control bureaucrats have done everything in their power to target and eliminate the town’s first—and only—food truck simply because they dislike its owners and the fact that they dared to work with the Institute for Justice to call for the repeal of the town’s unconstitutional food truck ban.
Theslet Benoir and Clemene Bastien are a married couple that immigrated to the United States from Haiti two decades ago. They settled in Parksley, where they opened a brick-and-mortar store that caters to the needs of the Eastern Shore’s Haitian population. Last June, Theslet and Clemene expanded their business by opening the Eben-Ezer Haitian Food Truck—the town’s first. They parked the food truck on their own private property next to their store and began selling beloved Haitian dishes.
This did not sit well with Parksley Councilmember Henry Nicholson. Soon after the food truck opened, Nicholson berated Theslet and Clemene for opening a business that he saw as a threat to nearby restaurants. He also admitted to cutting the food truck’s water line, rendering it inoperable until Theslet and Clemene could pay someone to repair the damage. And while trying to prevent groceries from being delivered to the food truck a few days later, Nicholson screamed at Clemene: “Go back to your own country!”
When Nicholson’s attempts at intimidation failed to dissuade Theslet and Clemene from pursuing their American Dream, Nicholson and other members of Parksley’s town council passed a sweeping ordinance that banned all food trucks from operating within the town outside of special events. Despite the ban, the mayor publicly stated that Parksley would allow Theslet and Clemene to continue selling food until their one-year business license expired in May 2024.
At Theslet and Clemene’s behest, the Institute for Justice (IJ) sent a letter to the Parksley Town Council urging it to repeal the ban. The very next day, the town’s attorney sent a letter threatening to throw Theslet and Clemene in jail. Backtracking on its promise to let the food truck stay open until May, Parksley’s government told Theslet and Clemene that they had been committing criminal misdemeanors each day the food truck was in business. To avoid hefty fines and years behind bars, the town commanded Theslet and Clemene to immediately cease and desist operating their food truck. Terrified, they did what the government demanded.
But Theslet and Clemene have had enough. That’s why they teamed up with IJ to file a federal lawsuit to vindicate their First, Fourth, and Fourteenth Amendment rights. Enraged town officials can’t take the law into their own hands, damaging private property in the process. And the government can’t retaliate against its citizens for taking steps to petition for a change in the law, threatening them with imprisonment for voicing their concerns. Victory for Theslet and Clemene will mean victory for Americans everywhere who face arbitrary and vindictive punishment simply for exercising their right to earn a living and their right to question the government’s policy.
Theslet and Clemene Want to Run Their Businesses Without Fear
Theslet and Clemene are the embodiment of the American Dream. Husband and wife, they came to the United States from Haiti nearly two decades ago seeking asylum, which was granted. Since then, Theslet has become an American citizen, and Clemene has obtained a green card. The couple eventually settled in Parksley, where they started a brick-and-mortar store that sells items geared toward the Eastern Shore’s Haitian population. Clemene also runs a clothing store in nearby Onley, Virginia.
In May 2023, Theslet and Clemene obtained a business license from Parksley to open their third venture—the Eben-Ezer Haitian Food Truck. Little did they know that, in doing so, they would incur the wrath of Parksley’s officials. Because of Councilmember Nicholson’s hostility, Theslet and Clemene now fear for themselves and their property in a town they once loved. And since Parksley threatened them with imprisonment after they worked with IJ to call on the town to repeal its food truck ban, they worry that they will be punished for speaking out against other government actions they disagree with.
Councilmember Nicholson Antagonizes the Food Truck Owners and Tells Theslet That He Cut the Food Truck’s Water Line
Soon after Clemene and Theslet opened their food truck, Councilmember Nicholson appeared while Clemene was cooking and launched into a tirade about how competition from the food truck would harm the bottom line of nearby restaurants and his business that provides equipment to them. He also claimed, despite evidence to the contrary, that Theslet and Clemene had illegally dumped their used grease into the town’s water line. Later, when Theslet and Clemene weren’t watching, someone cut the food truck’s water line. Theslet arrived at the food truck shortly thereafter and found Nicholson standing nearby. According to Theslet, Nicholson took responsibility for the damage, claiming that he personally cut the water line because of the alleged illegal dumping. Not only did Theslet and Clemene have to pay to repair their water line itself, but they also lost approximately $1,300 to food spoilage in the process.
The next day, Nicholson attempted to prevent a box truck from delivering groceries to the food truck. When Clemene confronted him, he yelled: “Go back to your own country!” Clemene called the police. When the officers arrived, Nicholson told them that Theslet and Clemene lacked the necessary permits to operate their food truck—a lie that the owners disproved by showing the officers their paperwork. Nicholson even told the officers that he had cut the water line based on his authority as a town councilmember. When the officers told him that he had no authority to cut the water line and should not have done so, Nicholson became openly hostile towards the officers. This event distressed Clemene so greatly that she obtained an emergency protective order and, later, a preliminary protective order, against Nicholson from the local county court, which eventually expired.
Parksley Passes a Sweeping Food Truck Ban and Threatens to Jail Clemene and Theslet Under Its Zoning Code
On October 9, 2023, Parksley passed a sweeping food truck ban. The resulting ordinance only allowed people to operate food trucks during special events—in all other cases, they were forbidden. Thus, with the stroke of a pen, the town made Theslet and Clemene’s latest business venture illegal. But Mayor Frank Russell publicly stated, including to a local media outlet, that because the town had sold Theslet and Clemene an annual food-truck permit, the town did not intend to begin enforcing the ban until their permit expired in May 2024.
After the ban was passed, Theslet and Clemene spoke with IJ attorneys, and on the morning of November 2, IJ emailed a letter to Parksley urging it to repeal the ban. Fourteen minutes later, the town sent an email in response, saying that the letter had been received and forwarded to the Mayor and Town Council. The very next day, on November 3, the town’s attorney mailed a cease-and-desist letter to Theslet and Clemene, which they received on November 6. The letter completely disregarded the mayor’s promise that the food truck could stay in business until its license expired. Instead, it accused Clemene and Theslet of being criminals.
Bizarrely, rather than relying on the food truck ban, the letter only cited Parksley’s “longstanding” zoning code, which provides that anything not expressly authorized is banned. According to the town, because food trucks are not listed as an approved use in Parksley, Theslet and Clemene had been committing criminal misdemeanors every day they operated their food truck—even before the food truck ban was enacted. As punishment for these offenses, Parksley threatened to impose thousands of dollars in fines and throw Theslet and Clemene in prison for years. Faced with serious jail time for running a business that Parksley issued them a license to operate—and that the mayor said the town would continue to let them operate—Theslet and Clemene immediately stopped operating.
On November 14, Parksley repealed its anti-food-truck ordinance. But the town’s newfound interpretation of its zoning code in retaliation to the letter sent on their behalf remained. So rather than allowing the town’s sole food truck to reopen, Parksley doubled down on its new position that food trucks have never been allowed under the zoning code, despite the business license that the town sold Theslet and Clemene and all of the town officials’ subsequent statements. The town now claims that, if Theslet and Clemene want to reopen their food truck, they will need to get a special use permit—which the town council has complete discretion in granting or denying. And to obtain the permit, they will need to accomplish the impossible feat of obtaining written approval from every business owner within 500 feet of the food truck—including Councilmember Nicholson.
Nicholson and Parksley Violated the Food Truck Owners’ Constitutional Rights
Councilmember Nicholson had no authorization to enter Theslet and Clemene’s property to cut their food truck’s water line. He had no permission, warrant, or reasonable justification for his intrusion, yet he committed a trespass on their property that resulted in damage. This violated the food truck owners’ Fourth Amendment rights. 1 What’s more, the Supreme Court has expressly explained that disconnecting a person’s utilities without affording him notice or an opportunity to be heard violates his Fourteenth Amendment right to procedural due process. 2 And no reasonable person thinks that cutting a food truck’s water line is within the job duties of a town councilmember. 3
Just as local officials cannot step outside their job duties to violate people’s rights, local governments cannot retaliate against people who engage in protected First Amendment activity. 4 In Mt. Healthy City School District Board of Education v. Doyle, 5 the Supreme Court laid out the burden-shifting framework for First Amendment retaliation claims. The plaintiff must first “show that his conduct was constitutionally protected, and that this conduct was a “substantial” or “motivating” factor underlying the government’s decision to take an adverse action against him. If the plaintiff makes this showing, then the government must establish “by a preponderance of the evidence that it would have reached the same decision . . . even in the absence of the protected conduct.”
Theslet and Clemene communicated with IJ to petition Parksley to rescind its food truck ban. This is protected activity under the First Amendment. 6 Eventually, IJ sent the town a letter urging it to repeal the ban. As a result, Parksley’s town council completely changed its position as to whether Theslet and Clemene could continue operating their food truck and even had the town’s attorney send a letter to Theslet and Clemene threatening them with years in jail if they continued doing business. This is not just outrageous—it’s unconstitutional.
The Plaintiffs are Theslet Benoir, Clemene Bastien, and their business, Eben-Ezer Haitian Food Truck LLC.
The Defendants are Parksley Councilmember Henry Nicholson and the Town of Parksley.
Theslet and Clemene are asking the court to declare that Councilmember Nicholson violated their Fourth and Fourteenth Amendment rights when he unilaterally entered their private property to disconnect their food truck’s water line while acting under color of state law. They are also asking the court to declare that Parksley retaliated against them for exercising their First Amendment right to petition their government for relief. Finally, they seek damages for the cost of repairing their water line, the food spoilage that occurred when they scrambled to repair it, and lost profits.
The Litigation Team
The attorneys on this case are IJ-Florida Managing Attorney Justin Pearson and Institute for Justice Litigation Fellow Dylan Moore. Institute for Justice Senior Attorney Paul Sherman serves as local counsel.
About the Institute for Justice
The Institute for Justice (IJ) is the national law firm for liberty. IJ has defended other innocent people against retaliation from local government officials. This year, the Supreme Court will hear IJ’s case challenging immunity for city officials in Castle Hills, Texas, who arrested a grandmother in retaliation for criticizing them. IJ is also representing a man in East Cleveland, Ohio, whom city officials targeted with a never-before-used ordinance, damaging his truck in the process, all because he supported the mayor’s election opponent. And in Newton, Iowa, IJ is seeking accountability after city officials arrested a man for calling city officials “fascists” for previously silencing his speech.