MICHAEL FRIEND v. CITY OF NEW HAVEN POLICE DEPARTMENT, et al.
Civil No. 3:18-CV-1736(AVC)
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
September 29, 2020
This is an action for damages brought pursuant to
FACTS
An examination of the complaint, pleadings, local rule 56 statements, exhibits accompanying the motions for summary judgment аnd responses thereto, discloses the following undisputed facts:
“Friend works several different jobs, including removing junk, and delivering food in the evenings for Grubhub and Uber Eats.” He “has no criminal history and has lived in Stamford for his entire adult life.”
At all relevant times, the defendant, Richard Gasparino was a police sergeant employed by Stamford Police Department, in Stamford, Connecticut.
The defendant, the city of Stamford is a municipality in the state of Connecticut.
“On April 2, 2018, Stamford applied to the Connecticut Department of Transportation‘s highway safety office for $57,600 to pay for a project entitled “FY 2018 DDHVE,” standing for “Distracted Driving High Visibility Enforcement.” The enforcement effort was “intended to enforce the law prohibiting the use of cell phones while driving to reduce motor vehicle collisions.” Stamfоrd “sought to stage the enforcement, in relevant part, on April 12, 2018 at the intersection of Hope and
On April 12, 2018, at approximately 4 p.m., Stamford police, including Gasparino, conducted the distracted driving enforcement operation. The plaintiff, Friend, saw “Gasparino standing behind a column on the side of Hope Street watching traffic coming north. While watching traffic from the side of Hope Street, Gasparino was radioing ahead to his colleagues whenever he alleged a driver to have been using a cell phone.”
Friend “objected” to the manner in which police were conducting the operation and he “wanted to alert motorists to the fact that the police were uр ahead.” Friend made a sign that read “Cops Ahead.” He “displayed the sign while standing on the sidewalk, 2 blocks from the defendants’ operation.” Gasparino “approached . . . Friend and took the sign from him.” Gasparino told Friend that he was “interfering with our police investigation.” Friend also states that Gasparino told him he should “leave the spot where he was standing.” Stamford denies this fact. Both of the defendants state that Gasparino told Friend not to come back with another sign and if he did, he
Friend went to his vehicle to retrieve another piece of paper so that he could make another sign. He went to a nearby conveniеnce store where, according to Friend, he borrowed a marker and made another sign that read “Cops Ahead.” He again displayed his sign in the vicinity of the defendants’ operation. Subsequently, an employee of the convenience store gave Friend a larger sign that also read “Cops Ahead.” Friend displayed the larger sign.
Approximately thirty minutes later, at 4:30 p.m., Gasparino arrested Friend for “interfering” with the distracted driving investigation. “Gasparino thought that while Mr. Friend was holding up his sign on the sidewalk, ‘he was tipping off motorists and due to this officers were not observing as many violations as they should be.‘” Gasparino charged Friend with interference in violation of
On April 12, 2018, while Friend was at the Stamford police station, sergeant Steven Perrotta was working as the desk sergeant. Only the booking officer interviewed Friend. He inquired about Friend‘s residence, employment, and “questions
Friend states that he had no way to appeal this decision. Stamford denies this fact and states that Friend could have “request[ed] to speak with the [d]esk [s]ergeant or another Stamford employee about the bail . . . .”
Friend did not post the bail amount and was held at the police station.
In the early morning hours of April 13, 2018, at 1:30am, the bail commissioner interviewed Friend, as is required when an
While he was held at the Stamford police station on the evening of April 12 and early mоrning hours of April 13, 2018, Friend was not able to work his food delivery job. Additionally, because police confiscated his cell phone when he was arrested, Friend had to purchase a replacement phone after he was released.
The parties largely dispute the procedures and standard for setting bail in Stamford, and surrounding inquiries. Stamford‘s written рolicy provides that desk sergeants set bail for arrestees. Friend states that “by practice, Stamford has extended that designation to any employee with a job title of sergeant or above, including police officers working as sergeants in an acting capacity.” Stamford denies this fact and states that “[t]he ultimate duty to set bail is with [d]esk [s]ergeants, but they may defer to others in certain situations.” Stamford admits that supervisors may set bail, but states that such action is subject to review by the desk sergeant.
According to Friend, “Stamford does not require its employees to interview arrestees when setting bail” and individuals who set bail “are not required to inquire whether arrestees can afford bail.” Friend also states that
Once bail is set, Stamford police officer(s) notify an arrestee of the bail decision and “are not required to document the reasoning behind their . . . decision.” The parties dispute whether desk supervisors are required to and/or regularly review bail amounts set in the department. Lieutenants are not required to review bail decisions and Stamford does not evaluate employee bail-setting performance.
The parties also dispute the extent of training officers receive with respect to setting bail. Friend asserts that Stamford does not require officers to be trained on setting bail and that they receive “no formal training about how to set bail
Stamford states that “[t]raining of SPD officers regarding the setting of bail starts with basic training for new recruits at the Police Academy where they learn about the [l]aws of [a]rrest and the processing of arrestees, and continues during the new recruits’ twelve (12) week mandatory field training. During field training, the recruits spend time in the jail where arrestees are processed and bail is set.” Stamford states that “new recruits are provided with written materials during basic training at POSTC.”4 “After successfully completing basic training аnd SPD field training, SPD recruits become Connecticut certified police officers. Once a new recruit becomes a CT certified police officer, they continue to learn on the job
Friend submits statistics regarding arrestees arrested at the time of his arrest and their bonds and listed offenses. Stamford оbjects to these facts as hearsay and because they are incomplete, not properly authenticated and irrelevant.
Stamford submits that prior to Friend‘s arrest, no complaints or lawsuits were filed against it or its officers regarding the setting of bail or bail setting procedures. Friend does not dispute this fact, but states that it is not “material to the City‘s failure to train its employees.”
STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Summary judgment is appropriate if, after discovery, the nonmoving party “has failed to make a sufficient showing on an
“A dispute regarding a material fact is genuine ‘if evidence is such that a reasonable jury could return a verdict for the nonmoving party.‘” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “‘Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.‘” Id. at 523 (quoting Bryant, 923 F.2d at 982). The nonmoving party cannot “‘rely on conclusory allegations or unsubstantiated speculation’ but ‘must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.‘” Robinson v. Concentra Health Servs., 781 F.3d 42, 34 (2d Cir. 2015) (citation omitted).
I. First Amendment - Counts 1 & 2
In counts one and two, Friend alleges that Gasparino violated his First Amendment rights to freedom of speech when he confiscated Friend‘s “Cops Ahead” sign, asked him to leave the area and not return with another sign and arrested Friend upon such return.
Friend argues that he engaged in the republication of public and truthful information and his act of holding two signs in two locations constituted protected speech. He avers that Gasparino‘s “speech silencing measures are content-based restrictions on expression” “are presumptively invalid” and “must meet strict scrutiny.” Specifically, Friend argues that he may not be punished for his dissemination of public information on a matter of public concern, absent furtherance of “a state interest of the highest order” and a narrowly tailored punishment. He notes that police officer performance of their duties represents a public concern and argues that the government interests of “not having to address Friеnd‘s protest” and/or “not observing as many violations” are not sufficiently compelling. He states that Gasparino‘s punishment was not “narrowly tailored” as it prevented Gasparino from republishing lawfully obtained public information. Friend points out that his speech “was more closely tailored to reducing distracted
Gasparino argues in opposition, and in his own motion for summary judgment, that Friend “was not arrested for expressing any opinion or message related to a matter of public significance.” He states that his act of seizing the sign and warning Friend not to return with another sign was “narrowly tailоred” action with the aim of accomplishing the important government interest of continuing a traffic safety operation and ultimately saving lives. Gasparino notes that “[a]t the heart of this case is whether [Friend‘s] attempt to hinder this initiative trumped the law enforcement effort to improve highway safety without interruption.” With respect to Friend‘s argument that his speech was “content-based,” Gasparino points out that his “Cops Ahead” sign did not discuss a topic or idea or express an opinion. It was, according to Gasparino, “of little, if any, public concern.” Gasparino states that not permitting Friend to display his sign in the area he sought to display it did not “chill” any speech protected by the First Amendment and any effect on Friend‘s speech was “de minimus.”
In his reply and his opposition to Gasparino‘s motion, Friend argues that his content-based speech warrants strict
“The First Amendment protects against government regulation and suppression of speech on account of its content. Content-based speech restrictions are subject to ‘strict scrutiny‘—that is, the government must show that the regulation at issue is narrowly tailored to serve or promote a compelling government interest.” U.S. v. Caronia, 703 F.3d 149 (2d Cir. 2012) (internal citations omitted). “In order to narrowly tailor a law to address a problem, the ‘government must curtail speech only to the degree necessary to meet the particular problem at
In this case, it is questionable whether Friend‘s act of holding a “Cops Ahead” sign a few blocks from a location in which officers were stopping distracted drivers, rises to the level of expression of an opinion related to a matter of public significance. Although Friend states that he “objected to the way [police] were issuing tickets,” no where does Friend state how such issuance was unlawful or improper. While he makes reference to the procedure by which Gasparino stоod “behind a column” and “radio[ed] ahead to his colleagues whenever he alleged a driver to have been using a cell phone,” he never discusses how this procedure was unfair to individuals driving by or was a deviation from normal police procedure. His signs did not discuss a topic or express his opinion on it. The court
Even assuming that his speech was protected, however, and was content-based, the court concludes that Gasparino‘s actions pass strict scrutiny. Although Friend identifies the government interest at stake as one of “generat[ing] ticket-writing opportunities,” instead, the police department‘s interest was in saving lives by stopping distracted drivers and issuing citations for their behavior. More than simply writing tickets, the police operation sought to stop and cite violators in order to deter not only current behavior, but also future distracted driving and, therefore, save lives. The court concludes that this was a sufficiently “compelling interest.” In light of this purpose, and Friend‘s stated purpose to warn such violators before they were detected by police, the only way in which Gasparino could tailor punishment was to remove Friend and his signs from the adjacent area. The operation could only effectively continue without Friend‘s interference. The court acknowledges that his removal defeated the purpose of what Friend was trying to accomplish, however there was “no ‘less restrictive alternative,‘” Fed. Election Comm‘n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 265 (1986), given Friend‘s goal and the purpose of the police operation. Had
Friend‘s cites Bartnicki v. Vopper, 532 U.S. 514 (2001), for the Court‘s observation that “it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party.” Id. at 529-30. In that case, however, the referenced “non-law-abiding third party” broke the law by providing the information at issue. Here, the information obtained regarding the police presence in the area, was not the basis for the unlawful conduct at issue. Such unlawful conduct in this case was a violation of Connecticut distracted driving laws. The Bartnicki Court also noted that “there are some rarе occasions in which a law suppressing one party‘s speech may be justified by an interest in deterring criminal conduct by another, see, e.g., New York v. Ferber, 458 U.S. 747 (1982) . . . .” Id. at 530.
Gasparino‘s motion for summary judgment with respect to Friend‘s claim for a violation of his First amendment rights is granted and Friend‘s motion on that issue is denied.
II. Malicious Prosecution - Count 3
Friend argues that he is entitled to judgment on his malicious prosecution claim brought pursuant to the section 1983 and the Fourth Amendment, because he was unlawfully charged with
Gasparino argues that the line of cases Friend cites in support of his argument all involved only verbal conduct and in this case, Friend was arrested for his physical conduct. Specifically, Gasparino argues that Friend “was arrested for his physical conduct which was intended to and actually or potentially could have hindered the officers in the course of their duties.” In this case, Gasparino states that he warned Friend not to return with another sign or he would be arrested for interference. When Friend did exactly that, Gasparino arrested him. Gasparino notes that “Friend‘s intentional physical conduct . . . was within the conduct proscribed by the statute as defined in Williams”6 and “can be inferred from his words and actions.”
With respect to its determination of the existence of probable cause, the “court must look at the totality of the circumstances.” Marchand v. Simonson, 16 F. Supp. 3d 97, 110 (D. Conn. 2014) (quotation marks and citation omitted). “Probable cause to arrest exists when the authorities have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). Similarly, “under Connecticut law, probable cause comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.” Weinstock v. Wilk, 296 F. Supp. 2d 241, 246 (D. Conn. 2003), adhered to on reconsideration, No. 3:02CV1326(PCD), 2004 WL 367618 (D. Conn. Feb. 25, 2004). “‘In determining whether the necessary quantum of evidence existed to support a finding of probable cause, . . . the [c]ourt must consider those facts available to the officer at the time of the arrest.‘” Goff v. Chivers, 2017 WL 2174404 (D. Conn. May 17, 2017) (quoting Reese v. Garcia, 115 F. Supp. 2d 284, 290 (D. Conn. 2000)). “[I]f probable cause existed for the arrest, the plaintiff[] cannot satisfy the elements of . . . a malicious prosecution claim under § 1983.” Shattuck, 233 F. Supp. 2d 301, 307 (D. Conn. 2002).
With respect to the probable cause element, the court must address whether there was sufficient probable cause to arrest
In Goff v. Chivers, 2017 WL 2174404 (D. Conn. May 17, 2017), this court recognized that “[a] third manner of violation of the statute has emerged in the case law since Williams was
The court concludes that based on the undisputed facts, Gasparino had probable cause to arrest Friend for interference, in violation of
III. Due Process and Equal Protection - Counts 4 & 5
Friend next asserts claims against the city of Stamford in count four (violation of his right to procedural due process) and count five (substantive due process and equal protection). He argues that Stamford is liable for a violation of his constitutional rights based on its unlawful procedure for setting bail. Specifically, Friend points out that because Stamford designates police supervisors with the power to set bail, such supervisors are “policy-makers” for purposes of the Monell analysis. Friend states that the city “maintains unconstitutional practices” with respect to setting bail and failed to properly train its employees “on how to constitutionally set bail.” He argues that Stamford‘s “longstanding custom of unconstrained bail-setting . . . ,” includes a failure to interview arrestees or review documentation and a failure to train or provide sufficient guidance to employees regarding setting a proper amount of bail.
Stamford argues in opposition, and in support of its own motion and reply, that there is “no evidence of an aberrant ‘custom’ which led to the alleged constitutional violation.” Stamford clarifies that the desk sеrgeants are responsible for setting bail, although they may defer to a sergeant or other
Friend replies that Stamford‘s statements are “incorrect” or a “mischaracterization of the evidence.” Specifically, Friend argues that a single act may establish a municipal policy including a single act of a failure to train where “unconstitutional consequences” of such failure are “patently obvious.” He cites Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992), for the proposition that repeated complaints are not necessary.
The Supreme Court has recognized that municipalities may be held liable under
“Courts have recognized four ways for plaintiffs to demonstrate a ‘policy or custom‘: (1) ‘a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body‘s officers,’ Monell v. Dep‘t of Soc. Servs. of City of New York, 436 U.S. 658, 690, (1978); (2) conduct ordered by a municipal official with policymaking authority, Pembaur v. City of Cincinnati, 475 U.S. 469, 483–84 (1986);11 (3) actions taken ‘pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body‘s official decisionmaking channels,’ Monell, 436 U.S. at 690–691; . . . or (4) a ‘failure to train’ municipal employees that ‘amounts to deliberate indifference to the rights of persons with whom the [employees] come into contact,’ City of Canton, Ohio v. Harris, 489 U.S. 378, 388, (1989).”12 Walker v.
At the outset, the court notes that Friend has failеd to state facts establishing that Gasparino was a policymaker. Friend‘s argues that Gasparino qualifies as a policymaker because Stamford has no policy on the issue of setting bail and Gasparino is authorized to make decisions with respect to bail. He cites no law on point to support the proposition that Gasparino, a police sergeant, was a “policymaker” with regard to the issue of setting bail in the city of Stamford. Gasparino is not an individual with “substantial authority” regarding bail setting procedures.
To support his statement that Stamford “maintains unconstitutional practices” with respect to setting bail, Friend cites a lack of consistent procedures and training and guidance for those officers making decisions on bail. He does not cite cоmplaints, other than his own, that such unlawful practices resulted in constitutional violations. Stamford, for its part, references the testimony of four officers with respect to factors they typically consider in setting bail. Stamford also
With respect to a lack of consistently applied procedures regarding bail, Friend‘s evidence is also lacking. Although he
CONCLUSION
For the foregoing reasons, the plaintiff‘s motion for summary judgment (document 58) is denied and the defendants’ motions (documents 59 & 61) are granted. The clerk is directed to render judgment and close this case.
It is so ordered this 29th day of September 2020, at Hartford, Connecticut.
/s/
Alfred V. Covello
United States District Judge