Friend v. Gasparino
61 F.4th 77
2d Cir.2023Background
- On April 12, 2018, Michael Friend stood on a public sidewalk near a Stamford distracted‑driving enforcement operation holding a sign reading “Cops Ahead.”
- Sergeant Richard Gasparino twice approached: he confiscated Friend’s signs after telling him not to return with another sign, and after Friend returned with a second sign he arrested Friend under Conn. Gen. Stat. § 53a‑167a (interfering with an officer).
- Friend was booked, had two phones seized, and Gasparino set bail at $25,000; a bail commissioner later reduced bail to $0 and Friend was released; prosecutors entered nolle prosequi, noting Friend’s signs actually aided compliance.
- Friend sued Gasparino and the City of Stamford under 42 U.S.C. § 1983 for violations of the First, Fourth, and Fourteenth Amendments; the district court granted summary judgment to defendants.
- The Second Circuit vacated summary judgment as to Friend’s First Amendment (sign seizure/arrest) and Fourth Amendment (malicious prosecution/probable cause) claims against Gasparino, affirmed summary judgment for the City on the Monell/due process and equal protection claims, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment: seizure of signs and arrest | Friend: holding/displaying “Cops Ahead” is protected speech; confiscation and arrest violated his free‑speech rights | Gasparino: speech was of little public concern or, if protected, restriction was necessary to save lives/enforce distracted driving (strict scrutiny satisfied) | Court: speech is protected; restriction is content‑based and strict scrutiny applies; state interest must not be defined by the effect of the speech; strict scrutiny not met — vacated summary judgment and remanded (qualified immunity left to district court) |
| Fourth Amendment: malicious prosecution / probable cause | Friend: no probable cause because § 53a‑167a proscribes only physical conduct or fighting words, not nonviolent protest or speech | Gasparino: had probable cause because Friend returned after being warned not to return with a sign | Court: as matter of Connecticut law § 53a‑167a does not cover Friend’s conduct; no probable cause; vacated summary judgment and remanded to address remaining elements and qualified immunity |
| Fourteenth Amendment / Monell: municipal liability for bail decision | Friend: City is liable because Gasparino’s $25,000 bail reflected municipal policy or a well‑settled custom | City: Gasparino was not a final policymaker; bail decisions are reviewable (desk supervisors, bail commissioner); no municipal policy caused the deprivation | Court: affirmed summary judgment for City — Gasparino was not a final policymaker and acquiescence by subordinates does not establish municipal policy |
| Qualified immunity (defense) | Friend: constitutional violations occurred | Gasparino: entitled to qualified immunity | Court: did not resolve qualified immunity; remanded for the district court to consider it in the first instance |
Key Cases Cited
- Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (municipal liability under § 1983 requires an official policy or custom)
- State v. Williams, 534 A.2d 230 (Conn. 1987) (Conn. Supreme Court: § 53a‑167a proscribes only physical conduct and fighting words)
- City of Houston v. Hill, 482 U.S. 451 (First Amendment protects verbal challenges to police action)
- Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105 (state may not define its compelling interest by reference to the speech's effect)
- United States v. Stevens, 559 U.S. 460 (courts should not create new broad categories of unprotected speech)
- Cantwell v. Connecticut, 310 U.S. 296 (First Amendment applies to the states)
- Hobbs v. County of Westchester, 397 F.3d 133 (strict scrutiny/narrow tailoring standard for content‑based restrictions in a public forum)
- Cornelio v. Connecticut, 32 F.4th 160 (elements of § 1983 malicious prosecution claim require establishing lack of probable cause under state law)
- Darbisi v. Town of Monroe, [citation="53 F. App'x 159"] (2d Cir. 2002) (officer lacked arguable probable cause under § 53a‑167a for arrest based on verbal conduct)