I am not a lawyer and do not give legal advice. A citizen seeking legal advice should consult with a lawyer. My thoughts and opinions, expressed on all pages on this website, are just that i.e. my thoughts and opinions.
In the video where Sims was berating the "old white lady" he made the point that he had the same First Amendment rights that she did. Generically, I agree. "[There exists a] profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, 376 U.S. 254 (1964). But he misses something in his thinking. I don't think his potential civil liability exists merely because of his speech. I think he has exposure because of the retaliatory nature of his speech when combined with his public official status. In the video with the "old white lady" he states his motivations in words like "this is what they deserve and this is what they need." Sims was not merely 'counter-speaking'. He was retaliating.
ROSSIGNOL v. VOORHAAR (INTERESTING 'COLOR OF STATE LAW' & QUALIFIED IMMUNITY CASE)
ROUND ONE: First Amendment Retaliation Lawsuits Against Purely Private Citizens Fail
Off-duty Sheriffs' deputies (government officials) in Maryland did not want a local newspaper to say anything critical about their boss, the elected Sheriff, on election day aheead of the Sheriff's attempted election. So, to silence the political speech of the newspaper several of the deputies a concocted scheme whereby in the middle of the night ahead of the election that would purchase all the newspers they could find, from mailboxes and local stores, so that voters would not be able to obtain the newspaper's political speech. The newspaper (Rossignol) filed a First Amendment retaliation lawsuit against the Sheriffs' deputies and the Sheriff (Voorhaar). The defendents - all public officials - argued that they conducted their newspaper-buying activity in their purely private citizen capacities and therefore the Court lacked jurisdiction to entertain a First Amendment retaliation caim. Judge Nickerson agreed and the newspaper publisher's case was dismissed. Read Rossignol v. Voorhaar, 199 F.Supp.2d 279 (2002). Private citizen speech against private citizen speech is part of the "profound national commitment" referenced by the Supreme Court. If one private citizen speaks in a peaceful, pleasant, manner and an opposing private citizen speaks in a rude and obnoxious manner it does not mean the second speaker's speech is illegal. Mr. Sims, if he was acting in his purely private citizen capacity was correct in saying to the "old white lady" that his speech is protected by the First Amendment. It is not illegal for him to be an obnoxious a private citizen, just like it wasn't illegal for Sheriff's deupties in Rossignol to buy lots of newspapers.
ROUND TWO: First Amendment Retaliation Lawsuits Against Public Officials Acting 'Individually Under Color of State Law' Proceed
In a very interesting decision the Court of Appeals overruled Judge Nickerson and held the public official Sheriffs' deputies were acting under color of state law. Read Rossignol v. Voorhaar, 316 F.3d 516 (2003).
ROUND THREE: Qualified Immunity Not Permitted Because Public Officials Earlier Argued That They Acted In Private Citizen Capacities
On remand, Judge Nickerson ruled that the defendants could not have their cake and eat it too. He ruled that they could not try and use their public official status to make a qualified immunity argument because they had initially argued that they acted only as private citizens. Read Rossignol v. Voorhaar, 321 F.Supp.2d 642 (2004).
Qualified Immunity is a topic unto itself i.e. when it can and cannot be claimed and what the elements are, when analyzing it. A google search "qualified immunity" in the Third Circuit Court of Appeals for cases since 2015 makes for an interesting read. Qualified immunity attaches most typically to public officials acting in their official capacities. It doesn't apply to purely private citizens. Page 11 of this decision discusses qualified immunity. Broadly, the doctrine of qualified immunity provides that government officials are immune from suits for civil damages under 42 U.S.C. § 1983 ―insofar as their 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 (1982). I think Sims would stand no chance of being able to win an argument saying that he didn't really know the citizens were engaging in constitutionally protected activity. He announced to the "old white lady" that he knew she was engaged in constitutionally protected activity. It is debatable whether qualified immunity even applies to the status 'individual capacity acting under color of state law' (I do not believe it does i.e. I think it attaches only to the status of official capacity - another reason for not suing Sims in his official capacity). But even assuming arguendo that qualified immunity could be argued by Sims - how does he avoid the fact that he announced on video that he knows what the citizens were doing was constitutionally protected? His own words destroy any chance at winning a qualified immunity argument.