KEREN PRESCOTT v. YULIYA GILSHTEYN
(AC 46350)
Alvord, Seeley and Bear, Js.
August 20, 2024
******************************************************************
The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
******************************************************************
Syllabus
The plaintiff filed an application for a prejudgment remedy and a verified complaint in which she sought to recover damages from the defendant for assault, battery, intentional infliction of emotional distress and intimidation based on bigotry or bias. The plaintiff, a Black woman who suffered from multiple sclerosis, was attending a protest at the Capitol building in January, 2021, in the midst of the COVID-19 pandemic, to demonstrate her support of the Black Lives Matter movement. The defendant, a white woman, approached the plaintiff and, inter alia, asked her about “Black on Black” crime. After a brief exchange of words between the parties, the defendant spat directly into the plaintiff‘s face. During the hearing on her application, the plaintiff, inter alia, introduced testimony from G, a professor of criminology and social justice, as an expert on issues related to racism and social justice. The trial court granted the application, and the defendant appealed to this court. Held:
- The trial court did not err in awarding the plaintiff a prejudgment remedy of $75,000 in emotional distress damages; the plaintiff‘s testimony that she experienced severe emotional distress and humiliation as a result of being spat on, that the experience reawakened trauma of a past sexual assault, and that she had increased concerns that she might contract COVID-19, which could worsen her multiple sclerosis symptoms, afforded a reasonable basis for the prejudgment remedy.
- The trial court did not abuse its discretion in admitting G‘s expert testimony: pursuant to the standard set forth in Weaver v. McKnight (313 Conn. 393) for the admission of nonscientific evidence, the court found that G had special knowledge that was directly applicable to the matter at issue, his testimony offered the court a historical and sociological perspective on race and racism that would not have been within the knowledge of the average person, and his testimony providing context for how the defendant‘s statements could be construed was helpful to the court in its determination of whether the defendant exhibited racial bigotry or bias; moreover, the defendant‘s challenges to the admission of G‘s testimony in part concerned the substance of G‘s testimony, which related to the weight his testimony should be given and not its admissibility.
- This court concluded that there was sufficient evidence before the trial court to support its determination that there was probable cause to believe that the defendant‘s actions and/or statements were motivated in whole or substantial part by the plaintiff‘s race: G‘s testimony, which was properly admitted and was credited by the trial court, explained how some of the defendant‘s language could be interpreted as racist tropes indicating a racist attitude; moreover, the trial court reasonably could have determined that a person of ordinary judgment could conclude that the white defendant‘s conduct in spitting on the Black plaintiff was motivated in substantial part by race, as evidence showed that the defendant moved toward the plaintiff after the plaintiff began chanting, “Black lives matter,” stood directly next to the plaintiff, and used the phrases “Black on Black” crime and “all lives matter,” which could suggest the defendant had a level of racial animus.
- The defendant could not prevail on her unpreserved claim that the trial court committed plain error in granting the plaintiff‘s application for a prejudgment remedy in a case involving freedom of speech and first amendment principles: this case involved allegations against the defendant for her conduct in spitting on the plaintiff, not for making a verbal threat, and the court used the defendant‘s statements made just prior to the spitting incident solely to help determine her intent and whether she was motivated in whole or part by the plaintiff‘s race; moreover, the defendant did not demonstrate that the claimed error was so clear, obvious, and indisputable as to warrant the extraordinary remedy of reversal, as there are no exceptions within the statutes (
§§ 52-278c and52-278d ) governing prejudgment remedies for cases involving first amendment principles.
Argued February 6—officially released August 20, 2024
Action to recover damages for, inter alia, intimidation based on bigotry or bias, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Budzik, J., granted the plaintiff‘s application for a prejudgment remedy, and the defendant appealed to this court. Affirmed.
Norman A. Pattis, for the appellant (defendant).
Kenneth J. Krayeske, for the appellee (plaintiff).
Opinion
SEELEY, J. The defendant, Yuliya Gilshteyn, appeals from the judgment of the trial court granting the application for a prejudgment remedy filed by the plaintiff, Keren Prescott, upon findings of probable cause that the defendant committed a civil assault and battery against the plaintiff, that the defendant intentionally inflicted emotional distress on the plaintiff, that the defendant maliciously and intentionally harassed and intimidated the plaintiff by spitting in the plaintiff‘s face and that her actions in doing so were motivated, in whole or in substantial part, by the plaintiff‘s race. On appeal, the defendant claims that the court (1) improperly determined that the plaintiff was entitled to a prejudgment remedy in the amount of $295,239.60, (2) abused its discretion in permitting testimony from the plaintiff‘s expert concerning the racist import of certain statements made by the defendant, and (3) committed plain error in granting the plaintiff‘s application for a prejudgment remedy in a case involving freedom of speech and first amendment principles. We disagree and affirm the judgment of the court.
In its memorandum of decision granting the plaintiff‘s application for a prejudgment remedy, the court made the following factual findings and credibility determinations. “[The plaintiff] is a forty-one year old [Black] woman. She suffers from Multiple Sclerosis (MS) and is immunocompromised. [The plaintiff] is a sexual assault survivor [and] . . . testified that stress and viral infections can produce an increase or flare-up of her MS condition. [The plaintiff] testified that two members of her family have died from MS. On January 6, 2021, [the plaintiff] attended a political protest at the Connecticut State Capitol building with her friend Melina Floyd-Torres. Both [the plaintiff] and . . . Floyd-Torres describe themselves as activists who frequently attend protests to demonstrate
“[The defendant] is an approximately forty year old Caucasian woman [and] . . . is Jewish. [The defendant] is originally from Lithuania but immigrated to the United States when she was a teenager shortly after the fall of the Soviet Union. [The defendant] experienced instances of persecution and antisemitism in the Soviet Union, and such experiences were among the reasons she immigrated to the United States. [The defendant] also has experienced antisemitism in the United States. [The defendant] has two young children, one of whom is a baby. [The defendant] supports the ideas of the medical freedom movement, which, as relevant to this memorandum of decision, generally opposes medical mandates such as required vaccinations and masking requirements. [The defendant] found out about the January 6 protest at the state Capitol building via Facebook and attended the protest in order to express her support for the ideas of the medical freedom movement.
“At the time [the plaintiff] and . . . Floyd-Torres began shouting their slogans, [the defendant] was also at the metal ‘bicycle’ fence and about twenty feet to [the right of the plaintiff] and . . . [Floyd-Torres]. . . . Four people separated [the defendant] from [the plaintiff] and . . . Floyd-Torres, who were standing together along the metal fence. At all times relevant to this memorandum of decision, [the defendant] was holding one of her children, a baby, who was strapped to the front of [the defendant], wrapped in a blanket, and facing inward.
“On the videos of the incident at issue, [the defendant] can be seen standing along the metal fence and looking in the direction of [the plaintiff] as [the plaintiff] shouts, ‘Black lives matter’ and similar slogans into her megaphone. Another protestor (not [the defendant]) can be heard on the video shouting, ‘All lives matter.’ After a short period of time (forty seconds or so), [the defendant] can be seen leaving her previous position at the metal fence and walking over to stand next to . . . Floyd-Torres. [The plaintiff] was standing next to . . . Floyd-Torres. At the prejudgment remedy hearing, [the defendant] testified that she moved toward . . . Floyd-Torres and [the plaintiff] because she was concerned that [the plaintiff‘s] loud shouts regarding Black Lives Matter were overshadowing what [the defendant] understood as the protest‘s intended purpose of espousing support for the medical freedom movement. The court credits [the defendant‘s] testimony on this point.
was unmasked. [The defendant] turned suddenly toward [the plaintiff], spat directly into [the plaintiff‘s] face, and walked away hurriedly.
“[The plaintiff] was struck by [the defendant‘s] spit on her mask, glasses, and megaphone. [The defendant] testified that she was spitting at [the plaintiff‘s] megaphone, not at [the plaintiff‘s] person. The court does not credit [the defendant‘s] testimony on this point. The court concludes, as a factual matter, that [the defendant] intended to spit at and on [the plaintiff]. [The plaintiff] testified that she experienced severe emotional distress as a result of being spat upon by [the defendant]. [The plaintiff] testified that she experienced severe emotional distress over increased concerns that she may contract COVID-19,4 emotional
“After [the defendant] spat on [the plaintiff] and walked away hurriedly, [the plaintiff] and . . . Floyd-Torres pursued [the defendant]. A small crowd began to form. Some members of the crowd appeared to want to protect [the defendant] from [the plaintiff] and . . . Floyd-Torres, while some members of the crowd appeared to want [the defendant] detained. In the midst of this somewhat chaotic scene, [the defendant] can be heard to say on the videotape, ‘Get these crazy Black
Lives Matter activists away from me.’ Police eventually arrived on the scene, and sometime later that day, [the defendant] was arrested. The time period between when [the defendant] approached [the plaintiff] and . . . Floyd-Torres and when [the defendant] spat on [the plaintiff] and walked away is approximately one minute.” (Footnote altered; footnote omitted; footnotes in original.)
The plaintiff subsequently brought this action by filing an application for a prejudgment remedy along with a verified complaint. The verified complaint has four counts and alleges claims for assault, battery, intentional infliction of emotional distress, and intimidation based on bigotry or bias pursuant to
which it granted the plaintiff‘s application for a prejudgment remedy in the amount of $295,239.60. In its decision, the court made probable cause findings as to each of the counts of the verified complaint. Specifically, with respect to the counts alleging assault and battery, the court found that there was probable cause that “[the defendant] committed a civil assault and battery against [the plaintiff]” when the defendant “caused her spit to land on [the plaintiff‘s] person.” Next, the court found probable cause that the defendant “intentionally inflicted emotional distress on [the plaintiff]”
Finally, the court made a finding that probable cause existed that “[the defendant] maliciously and intentionally harassed and intimidated [the plaintiff] by intentionally spitting in [the plaintiff‘s] face and that [the defendant‘s] actions in so doing were motivated, in whole or in substantial part, by [the plaintiff‘s] race. In making this finding, the court relie[d] on the following specific facts. [The plaintiff] is [Black]. [The defendant] is white. [The plaintiff] was actively expressing her support for the Black Lives Matter movement at the time in question. After hearing [the plaintiff] express her support for the Black Lives Matter movement, [the defendant] intentionally left her initial position at the metal fence and walked over to stand next to [the plaintiff]. Upon reaching [the plaintiff] and . . . Floyd-Torres, [the
defendant] immediately expressed her disagreement with [the plaintiff‘s] views by using what an expert witness testified is a racist trope—asking about so-called ‘Black on Black crime.’ Seconds later, [the defendant] spat on [the plaintiff]. Stated plainly, when a white person spits on a Black person while that Black person is expressing views in support of the Black Lives Matter movement, and the white person disputes those views by expressing a racist trope, a person of ordinary judgment would, at a minimum, entertain the idea that the white person‘s decision to spit on the Black person was motivated in substantial part by race.” In reaching this conclusion, however, the court noted that it was not expressing a “view on whether the facts found by the court . . . meet the standard of preponderance of the evidence.”
After considering any defenses, counterclaims or set-offs, the court concluded that the damages suffered by the plaintiff primarily were for emotional distress. It awarded the plaintiff a prejudgment remedy in the amount of $75,000 for emotional distress damages. In light of the court‘s finding of probable cause to sustain count four alleging a violation of
Before addressing the claims raised on appeal, we first set forth the law governing prejudgment remedies and our limited standard of review in such cases. “A prejudgment remedy means any remedy or combination
of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment . . . .”
“Section
significant because a valid defense has the ability to defeat a finding of probable cause. . . .” Id., 141.
“As for our standard of review, our Supreme Court has stated that an appellate court‘s role on review of the granting of a prejudgment remedy is very circumscribed. . . . In its determination of probable cause, the trial court is vested with broad discretion which is not to be overruled in the absence of clear error. . . . Since Augeri [v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977)] . . . we have consistently enunciated our standard of review in these matters. In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. . . . [On appeal], therefore, we need only decide whether the trial court‘s conclusions were reasonable under the clear error standard. . . .” TES Franchising, LLC v. Feldman, supra, 286 Conn. 137–38. Additionally, we do not conduct a plenary review of the merits of defenses . . . raised, but rather our review is confined to a determination of whether the trial court‘s finding of probable cause constitutes clear error.” (Emphasis omitted; internal quotation marks omitted.) Konover Development Corp. v. Waterbury Omega, LLC, 214 Conn. App. 648, 657–58, 281 A.3d 1221, cert. denied, 345 Conn. 919, 284 A.3d 627 (2022).
I
The defendant‘s first claim is that the court improperly awarded the plaintiff a prejudgment remedy in the amount of $75,000 for emotional distress. Specifically, the defendant argues that there is little to no evidence supporting the plaintiff‘s claim of emotional distress “other than [her] self-serving statements [as] an activist,” which were not sufficient to meet her burden of establishing the extent of her damages. We do not agree.
The following additional facts are relevant to the defendant‘s claim. In its memorandum of decision, the court stated that, “[i]n setting an appropriate initial emotional distress damage amount, [it] relie[d] on the following facts. [The plaintiff] was spat upon in public. The court also [found], as
We next set forth general legal principles that guide our resolution of this claim. “Generally, a trial court [must] make a probable cause determination as to both the validity of the plaintiff‘s claim and the amount of the remedy sought . . . .” (Internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 339, 71 A.3d 492 (2013). In the present case, the defendant‘s claim as to the emotional distress damages concerns the latter. “[A]lthough the likely amount of damages need not be determined with mathematical precision . . . the plaintiff bears the burden of presenting evidence [that] affords a reasonable basis for measuring her loss . . . .” (Internal quotation marks omitted.) Id., 339–40; see also Burkert v. Petrol Plus of Naugatuck, Inc., 5 Conn. App. 296, 301, 497 A.2d 1027 (1985) (“damages need not be established with precision but only on the basis of evidence yielding a fair and reasonable estimate” (internal quotation marks omitted)). Moreover, trial courts have “broad legal discretion in awarding emotional distress damages“; Commission on Human Rights & Opportunities ex rel. Cortes v. Valentin, 213 Conn. App. 635, 656, 278 A.3d 607, cert. denied, 345 Conn. 962, 285 A.3d 389 (2022); and in our very limited review of the granting of a prejudgment remedy, we are mindful that the trial court, “[i]n its determination of probable cause . . . is vested with broad discretion which is not to be overruled in the absence of clear error.” (Internal quotation marks omitted.) TES Franchising, LLC v. Feldman, supra, 286 Conn. 137. We, therefore, do not examine the court‘s decision under an abuse of discretion standard but, rather, “need only decide whether the trial court‘s conclusions were reasonable under the clear error standard.” (Internal quotation marks omitted.) Id., 138. “[T]he clear error standard in this context is a heightened standard of deference that exceeds the level of deference afforded under the abuse of discretion standard. Therefore, this court will overrule the trial court‘s determination on a prejudgment remedy only if we are left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Landmark Investment Group, LLC v. Calco Construction & Development Co., 141 Conn. App. 40, 50, 60 A.3d 983 (2013).
In Giordano v. Giordano, 39 Conn. App. 183, 664 A.2d 1136 (1995), this court explained that “[a]n award of damages for emotional distress may be valid even though it is not substantially based on incurred medical expenses. Berry v. Loiseau, 223 Conn. 786, 811, 614 A.2d 414 (1992). A plaintiff may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclusively by the plaintiff‘s subjective complaints. . . . [There is] no reason to subject a claim of mental suffering, which is ordinarily evidenced by subjective complaints, to stricter scrutiny or
Similarly, in Commission on Human Rights & Opportunities ex rel. Cortes v. Valentin, supra, 213 Conn. App. 654–56, this court rejected a claim that there was insufficient evidence to support an award of emotional distress damages when the award was based on the testimony of the intervening plaintiff alone. In doing so, we noted that, “[i]n garden variety emotional distress claims, the evidence of mental suffering is generally limited to the testimony of the plaintiff.” (Internal quotation marks omitted.) Id., 655; see also Patino v. Birken Mfg. Co., 304 Conn. 679, 707, 41 A.3d 1013 (2012) (same).
“Viewing the evidence before the court in the light most favorable to the plaintiff“; Alpha Beta Capital Partners, L.P. v. Pursuit Investment Management, LLC, 193 Conn. App. 381, 453, 219 A.3d 801 (2019), cert. denied, 334 Conn. 911, 221 A.3d 446 (2020), and cert. denied, 334 Conn. 911, 221 A.3d 446 (2020); as we are required to do, we conclude that the court‘s prejudgment remedy award of damages for emotional distress was not clear error. Although the defendant describes as self-serving the plaintiff‘s testimony concerning the humiliating nature of the incident and the emotional distress she claims to have suffered as a result, the court specifically found credible the plaintiff‘s testimony that she experienced severe emotional distress as a result of being spat upon by the defendant and due to increased concerns that she may contract COVID-19 and that contracting COVID-19 might worsen her MS. The court also found credible her testimony that she felt “humiliation over being spat upon in public, and that the bodily violation of being spat upon reawakened the trauma of her past sexual assault.”7 It is not the role of
The plaintiff‘s testimony, therefore, afforded a reasonable basis for the prejudgment remedy of $75,000 in emotional distress damages. See Carrol v. Allstate Ins. Co., 262 Conn. 433, 448, 815 A.2d 119 (2003) (jury reasonably could have concluded that plaintiff suffered emotional distress on basis of plaintiff‘s testimony that “he could not sleep, had frequent nightmares, had a loss of appetite, and experienced depression and a sense of isolation from his community because of the investigation” by defendant insurer into origins of fire at plaintiff‘s home); Iino v. Spalter, 192 Conn. App. 421, 477–78, 218 A.3d 152 (2019) (“[a] plaintiff may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclusively by the plaintiff‘s subjective complaints” (internal quotation marks omitted)). As the plaintiff established a reasonable basis for the court‘s conclusions regarding emotional distress, its decision to award a prejudgment remedy of $75,000 for emotional distress was not clear error.
II
The defendant‘s next claim concerns the court‘s admission of expert testimony from Charles A. Gallagher, a professor of sociology and criminal justice at LaSalle University, concerning issues of race and the racial import of certain statements made by the defendant—specifically, the defendant‘s statement that “all lives matter” and reference to “Black on Black crime.” First, the defendant argues that Gallagher‘s testimony should not have been admitted into evidence because Gallagher, as a nonscientific expert, did not have any special skill or knowledge directly applicable to the matter at issue, which concerned the defendant‘s intent at the time she spat on the plaintiff, he “had nothing but attenuated general knowledge of the discussion of race in the United States,” and he offered no meaningful assistance to the court given that his testimony shed no light on the defendant‘s intent. Second, the defendant argues that there was no evidence that the defendant‘s statements “were inspired by racial animus other than the highly conjectural and virtually meaningless testimony of [Gallagher],” whose testimony should not have
A
The following additional facts are relevant to the defendant‘s claim concerning the admission of Gallagher‘s testimony. Following the first two days of the hearing on the plaintiff‘s application for a prejudgment remedy, the defendant filed a motion on July 1, 2022, to preclude Gallagher‘s expert testimony. The court denied the motion in a written order dated July 25, 2022. In that order, the court determined that the proffered expert testimony was not scientific in nature8 and, thus, was subject to admissibility under the standard set forth in Weaver v. McKnight, 313 Conn. 393, 405–406, 97
A.3d 920 (2014). After applying that standard, the court stated: “[T]he court finds . . . Gallagher is an expert in racial justice, racial criminal justice and related topics based on the curriculum vitae and report attached to [the plaintiff‘s] expert disclosure. . . . Because [the plaintiff] seeks treble damages pursuant to . . .
“In setting an appropriate amount of a prejudgment remedy, the court is required to determine, based on a standard of probable cause, whether [the defendant‘s] words and/or actions are based on racial bigotry or bias. At the June 16, 2022 hearing on this matter, there was
The test for admitting nonscientific expert testimony was set forth by our Supreme Court in Weaver v. McKnight, supra, 313 Conn. 405-406. Under that test, “[e]xpert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . [Id.] We review a trial court‘s decision to [admit] expert testimony for an abuse of discretion. . . . We afford our trial courts wide discretion in determining whether to admit expert testimony and, unless the trial court‘s decision is unreasonable, made on untenable grounds . . . or involves a clear misconception of the law, we will not disturb its decision.” (Internal quotation marks omitted.) R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., 171 Conn. App. 61, 110, 156 A.3d 539 (2017), aff‘d, 333 Conn. 343, 216 A.3d 629 (2019).
In the present case, applying the test set forth in Weaver, we conclude that the court did not abuse its wide discretion in admitting Gallagher‘s testimony. As to the first prong of Weaver, Gallagher is a professor of sociology with an expertise on issues related to race and criminal justice, and the court explicitly accepted Gallagher as an expert on those issues. See footnote 1 of this opinion. Because the plaintiff sought treble damages pursuant to
Second, after the court accepted Gallagher as an expert in sociology and racial justice, Gallagher testified regarding his knowledge of the sociological significance of the Black Lives Matter and All Lives Matter9 movements, as well as literature regarding “Black on Black crime.” He further testified regarding hallmarks of racist tropes and differentiating between racism, bias, and bigotry, and the historical conditions that were relevant to the circumstances in the present case. Although the defendant claims that Gallagher offered “nothing but attenuated general knowledge of the discussion of race in the United States” and that his “expertise is of a watercooler variety,” his testimony and academic credentials belie such a claim. There is a difference between Gallagher‘s academic experience in these fields and the knowledge that the average person might have. Gallagher offered the court a historical and sociological perspective on race and racism that not only helped inform the court‘s conclusion regarding racial animus but would not have been within the knowledge of the average person, despite their
Finally, as to the third prong of Weaver, the court specifically found that, given Gallagher‘s background in racial criminal justice, his testimony would be helpful to the court in its determination of whether the defendant‘s words and/or actions were primarily motivated by race, which was directly relevant to the amount of the prejudgment remedy ordered by the court. As the defendant points out, Gallagher could not and did not provide testimony as to what the defendant‘s specific intent or motivation was during the incident; his testimony, however, provided context for how the defendant‘s statements could be construed, which the court found to be helpful in its determination of whether the defendant exhibited racial bigotry or bias. Moreover, the defendant‘s challenges to the admission of Gallagher‘s testimony in part concern the substance of his conclusions, which relates more to the weight that his testimony should be given, not its admissibility. See Kohl‘s Dept. Stores, Inc. v. Rocky Hill, 219 Conn. App. 464, 490-91, 295 A.3d 470 (2023). Accordingly, we conclude that it was not an abuse of the court‘s discretion to admit Gallagher‘s testimony.
B
The defendant next claims that there was no evidence that her statements “were inspired by racial animus other than the highly conjectural and virtually meaningless testimony of [Gallagher],” whose testimony should not have been permitted, and that, in the absence of that testimony, the plaintiff offered no evidence establishing that the defendant‘s conduct was motivated by a specific intent to intimidate and harass the plaintiff on account of her race, as required to treble the damages under
Nevertheless, even without Gallagher‘s testimony, there was other evidence before the court to support its determination that there was probable cause to believe that the defendant‘s actions and/or statements were motivated by race. First, the court viewed video recordings of the incident, which showed that the defendant left her initial position and walked over to the plaintiff and stood by her. This occurred right after the plaintiff began expressing her support for the Black Lives Matter movement by shouting into her megaphone, “Black Lives Matter” and similar slogans. Although the court credited the defendant‘s testimony that the reason she moved toward the plaintiff was because “she was concerned that [the plaintiff‘s] loud shouts regarding Black Lives Matter were overshadowing what [the defendant] understood as the protest‘s intended purpose of espousing support for the medical freedom movement,” the exchange between the plaintiff and the defendant quickly became contentious when the defendant expressed disagreement with the
The defendant is correct that, for the plaintiff to receive treble damages under
As we have stated, “a prejudgment remedy hearing is not contemplated to be a full scale trial on the merits, which necessarily will mean that the evidence presented at the hearing will not be as well developed as it would be at trial . . . .” Id., 143. At such a hearing, a plaintiff need only establish “that there is probable cause to sustain the validity of the claim“; (internal quotation marks omitted) Calfee v. Usman, 224 Conn. 29, 37, 616 A.2d 250 (1992); and the probable cause standard “does not demand that a belief be correct or more likely true than false.” (Internal quotation marks omitted.) Landmark Investment Group, LLC v. Calco Construction & Development Co., supra, 141 Conn. App. 48. In fact, the trial court in the present case noted that it was not expressing a “view on whether the facts found by the court . . . meet the standard of preponderance of the evidence.”
As previously stated in this opinion, probable cause, for purposes of an application for a prejudgment remedy, “is a flexible and common sense standard.” (Internal quotation marks omitted.) TES Franchising, LLC v. Feldman, supra, 286 Conn. 137. “The legal idea of probable cause is a bona fide belief
III
The defendant‘s final claim is that the court committed plain error in granting the plaintiff‘s application for a prejudgment remedy in a case involving freedom of speech and first amendment principles. The defendant argues that, “given the importance of freedom of speech and expression in the United States, decisions involving speech acts ought to be decided by juries, and not, as here—even in the limited fashion afforded by a prejudgment remedy—in a preliminary hearing decided by a judge.” The defendant acknowledges that this claim is unpreserved and raises it pursuant to the plain error doctrine. In making the claim, the defendant relies on the decision of the United States Supreme Court in Counterman v. Colorado, 600 U.S. 66, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023), which is a case involving true threats of violence. In Counterman, “[t]he question presented [was] whether the [f]irst [a]mendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements.” Id., 69. In holding that it does, the court explained that “a mental state of recklessness is sufficient,” and that “[t]he [s]tate must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The [s]tate need not prove any more demanding form of subjective intent to threaten another.” Id. According to the defendant, the trial court in the present case “applied an objective standard in determining the intent of the defendant when making what the plaintiff‘s expert contend[ed] were racially charged comments. These comments were used to infer the intent behind the spitting. . . . [T]his use of an objective standard is unsustainable under Counterman . . . [and] it should be a jury, not the court, that decides an issue penalizing political speech.”
The plaintiff counters that “the words a person utters are properly used as evidence to determine intent and motive” and that, nonetheless, “spit is not speech” and the present case is not a threatening speech case. The plaintiff further asserts that “the defendant was not arrested for shouting ‘All lives matter’ or ‘Black on Black crime.’ . . . She . . . is being sued for assaulting the plaintiff with bodily fluids,” and that, even though her “words were . . . used as evidence of motive,” that was “entirely appropriate.” In support of this claim, the plaintiff relies on Wisconsin v. Mitchell, 508 U.S. 476, 489, 113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993), in which the United States Supreme Court held that “[t]he [f]irst [a]mendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant‘s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like.”
We begin with a brief discussion of the plain error doctrine. “The plain error doctrine is based on Practice Book
First, the defendant‘s reliance on Counterman is misplaced, as the facts of Counterman easily differentiate it from the present case. In Counterman, a defendant sent Facebook messages to a woman over a period of two years, some of which “envisaged harm befalling her . . . .” Counterman v. Colorado, supra, 600 U.S. 70. The messages caused the woman to be fearful she would get hurt and to suffer from severe anxiety. Id. The defendant was charged criminally under a Colorado statute that makes “it unlawful to [r]epeatedly make . . . any form of communication with another person in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” (Internal quotation marks omitted.) Id. After the defendant was convicted, he appealed, eventually to the United States Supreme Court, which held that, although “[t]rue threats of violence . . . lie outside the bounds of the [f]irst [a]mendment‘s protection“; id., 72; the first amendment nevertheless requires the state to “prove in true-threats cases that the defendant had some understanding of his statements’ threatening character.” Id., 73. In contrast, the present case involves allegations against the defendant for her conduct in spitting on the plaintiff, not for a verbal threat. The defendant‘s statements, made just prior to the spitting incident, were used by the court solely to help determine her intent at the time of the incident and whether she was motivated in whole or part by the plaintiff‘s race, which is consistent with Wisconsin v. Mitchell, supra, 508 U.S. 489; crucially, they were not construed as conduct in and of themselves. Nor can the defendant‘s statements be characterized as true threats of violence, which are “‘serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful violence,‘” and “subject individuals to ‘fear of violence’ and to the many kinds of ‘disruption that fear engenders.‘” Counterman v. Colorado, supra, 74.
Moreover, the defendant‘s argument that the prejudgment remedy hearing should have been decided by a jury, not the court, because first amendment issues are implicated is equally unavailing. The defendant provided no authority in support of this assertion. Prejudgment remedies are governed by statute. See
The judgment is affirmed.
In this opinion the other judges concurred.