Lisa ZALASKI, Animal Rights Front, Inc., Derek V. Oatis, Plaintiffs-Appellants, v. CITY OF HARTFORD, Sergeant Daniel Albert, Defendants-Appellees.
Docket No. 12-621-cv.
United States Court of Appeals, Second Circuit.
July 23, 2013.
722 F.3d 382
Argued: Feb. 27, 2013.
Heidi L. Hamilton, Crumbie Law Group, Hartford, CT, for Defendants-Appellees.
Before: CALABRESI, POOLER, and RAGGI, Circuit Judges.
REENA RAGGI, Circuit Judge:
I. Background
The pertinent facts, detailed in the district court‘s 80-page post-trial memoran
A. The “Red Nose Run”
On April 23, 2006, Riverfront Plaza—a public park that the City of Hartford leased to Riverfront Recapture, a private, not-for-profit company—was the site of the first annual “Red Nose Run,” an event that invited children as young as age four to participate in five non-competitive foot races ranging in length from 50 yards to a mile. Approximately 300 persons, the majority of them young children, were expected to attend the event, a fundraiser for the Boys & Girls Club of Hartford. The Run‘s co-sponsors were the Hartford Marathon Association and Ringling Brothers. Indeed, the Run was scheduled to coincide with the arrival in Hartford of the Ringling Brothers Circus.3
All Red Nose Run races began from the same point in Riverfront Plaza and progressed down a curved walkway. As the walkway veers leftward toward the Connecticut River, it is abutted on the right by a triangular patio platform, raised by three steps. The part of the patio approached from the walkway by the steps is approximately 66 feet in length. As it approaches the patio, the walkway is bordered on both sides by grassy knolls dotted with trees.
Red Nose Run organizers installed a temporary tent on the patio platform. There, children and their parents could register for, and reunite after, the races. At that site, each participating child also received a prize and complimentary refreshments were available.
B. The Challenged Arrests
1. Plaintiffs’ Initial Refusal To Move from the Walkway
Joining the children and parents attending the Red Nose Run were approximately 10 to 15 animal rights activists, there to protest Ringling Brothers’ treatment of animals. Four of these activists, including plaintiffs Zalaski and Oatis, were members of ARF. Zalaski and Oatis carried a 6-foot by 4-foot banner proclaiming, “Got Freedom? The Animals Don‘t.” The two other attending ARF members carried a 6-foot by 5-foot banner portraying a moribund elephant and the phrase “The Saddest Show on Earth.”
At least some of the protestors, among them Zalaski and Oatis, initially located themselves on the walkway near the patio steps. A non-plaintiff ARF member testified that this was an “ideal spot” because it faced the start of the races and, thus, children would have to run directly at the protestors and their signs. Dec. 5, 2011 Tr. 46.
2. Sergeant Albert‘s Dealings with Zalaski and Oatis
Defendant Sergeant Albert was one of the officers who responded to Riverfront Plaza. Much of his interaction with plaintiffs leading to the challenged arrests is recorded in a video that is part of the record on appeal. In the video, an event organizer is heard asking protestors to “work with me,” Rec. 0:56, while Oatis tells Albert that the protestors intend no harm to children participating in the races, Rec. 1:20 (“The last thing we are going to do is have some kids trip on each other or have something bad happen.“). After surveying the scene and learning that race organizers had a permit for the event, Sergeant Albert requested that ARF protestors on the walkway move up onto the patio steps. The ARF protestors, including Zalaski and Oatis, complied.
On the steps, the protestors no longer obstructed the walkway where races would be run, but, with their outstretched signs, they did partially block access to the registration/refreshment area. Upon hearing complaints to this effect, Sergeant Albert asked the ARF protestors on the steps to join the other protestors on the grassy knoll. At trial, Albert explained that he made the request because he expected the problem of free passage on the steps to worsen as more races were run and more people sought access to the platform. See Dec. 8, 2011 Tr. 93 (“[T]he platform was filling up, the obstructing I thought had increased because there w[ere] more people that had to, you know, work their way around this banner. There were more runs to come, more waves of runs to come. There would be more people wanting to use the platform.“). Albert testified that he viewed his directive as a “reasonable compromise” between the protestors and other race attendees. Id. at 80. If the protestors on the steps moved to the nearby grassy knoll, where other protestors were already located, then “[t]he platform would not be obstructed. They [i.e., the protestors] would have the right to demonstrate, and the marathon people, the [Ringling] people, would have their right to their private property and have their event and continue to, you know, give out the food and the prizes.” Id. at 79-80.
Two ARF members complied with Sergeant Albert‘s request. Zalaski and Oatis, however, refused, whereupon Albert arrested them for criminal trespass and misdemeanor obstruction of free passage. Plaintiffs were formally charged with the latter offense, see
C. The Instant Action
On April 21, 2008, ARF, Zalaski, and Oatis—together represented by attorney Oatis—filed this
The district court further rejected plaintiffs’ false arrest and malicious prosecution claims, finding that, irrespective of the particular offenses informing Sergeant Albert‘s decision to arrest or the formal filed charge, probable cause supported arresting Zalaski and Oatis for disorderly conduct. See id. at 50-55 (citing
This timely appeal followed.
II. Discussion
A. Probable Cause Challenge
1. Qualified Immunity Review
In evaluating a challenge to a judgment entered after a bench trial, we review the district court‘s findings of fact for clear error and its legal conclusions de novo. See Bessemer Trust Co., N.A. v. Branin, 675 F.3d 130, 135 (2d Cir.2012). Among the conclusions of law that we review de novo is a decision affording a defendant qualified immunity. See Walczyk v. Rio, 496 F.3d 139, 153 (2d Cir.2007).
Qualified immunity shields law enforcement officers from
Courts are no longer required to answer these questions in sequence. See Pearson v. Callahan, 555 U.S. at 227, overruling in part Saucier v. Katz, 533 U.S. 194 (2001). Addressing the latter
In making the latter determination, the inquiry is not how courts or lawyers might have understood the state of the law at the time of the challenged conduct. Rather, “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. at 202; accord Winfield v. Trottier, 710 F.3d 49, 56-57 (2d Cir.2013). If the illegality of the conduct would not be so apparent, the officer is entitled to qualified immunity. See Walczyk v. Rio, 496 F.3d at 154. Thus, even if a right is clearly established in certain respects, qualified immunity will still shield an officer from liability if “officers of reasonable competence could disagree” on the legality of the action at issue in its particular factual context. Malley v. Briggs, 475 U.S. 335, 341 (1986). In short, if at least some reasonable officers in the defendant‘s position “could have believed that [the challenged conduct] was within the bounds of appropriate police responses,” the defendant officer is entitled to qualified immunity. Saucier v. Katz, 533 U.S. at 208; accord Walczyk v. Rio, 496 F.3d at 154.
As these precedents make clear, qualified immunity provides a broad shield. It does so to ensure “that those who serve the government do so with the decisiveness and the judgment required by the public good.” Filarsky v. Delia, 566 U.S. 377, 132 S.Ct. 1657, 1665 (2012) (internal quotation marks omitted). Toward that end, it affords officials “breathing room to make reasonable but mistaken judgments” without fear of potentially disabling liability. Messerschmidt v. Millender, 565 U.S. 535, 132 S.Ct. 1235, 1244 (2012) (internal quotation marks omitted). In sum, qualified immunity employs a deliberately “forgiving” standard of review, Amore v. Novarro, 624 F.3d 522, 530 (2d Cir.2010) (internal quotation marks omitted), that “provides ample protection to all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. at 341; accord Ashcroft v. al-Kidd, 131 S.Ct. at 2085.
2. Probable Cause Standard
Plaintiffs submit that the district court erred in finding that Albert‘s arrests of Zalaski and Oatis were supported by probable cause—or even arguable probable cause—to think that these two ARF members were engaged in any violation of Connecticut law. In evaluating this argument, we are mindful not only that qualified immunity is a forgiving standard but also that probable cause is a “fluid” one that does not demand “hard certainties,” Illinois v. Gates, 462 U.S. 213, 231-32 (1983), or “mechanistic inquiries,” Florida v. Harris, 568 U.S. 237, 133 S.Ct. 1050, 1055 (2013) (describing probable cause as “practical,” “common-sensical,” “all-things-considered” standard for assessing probabilities in particular factual context).
Under both federal and Connecticut law, “probable cause to arrest exists when police officers have knowledge or
Even where a reviewing court, applying these principles, concludes that probable cause to arrest was lacking in a given case, an officer “will still be entitled to qualified immunity ... if he can establish that there was ‘arguable probable cause’ to arrest.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004). “Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Id. (internal quotation marks omitted); accord Walczyk v. Rio, 496 F.3d at 163. Here, we need not, and do not, decide whether there was actual probable cause to arrest Zalaski and Oatis for disorderly conduct under Connecticut law because we conclude, in any event, that there was arguable probable cause to support the arrests.
3. Connecticut‘s Disorderly Conduct Statute
Because even an assessment of arguable probable cause requires some consideration of Connecticut‘s prohibition of disorderly conduct, we begin with the relevant statutory text:
A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: ... (5) obstructs vehicular or pedestrian traffic; or (6) congregates with other persons in a public place and refuses to comply with a reasonable official request or order to disperse.
Connecticut‘s Supreme Court has construed this misdemeanor‘s “intent” element to mean “predominant intent.” State v. Indrisano, 228 Conn. 795, 809 (1994). Thus, “to support a conviction for disorderly conduct [under
Albert argues that a reasonable officer should not be expected to know of Indrisano‘s gloss on the intent requirement of
4. Arguable Probable Cause To Think Plaintiffs Engaged in Disorderly Conduct
Plaintiffs submit that no reasonable officer could have thought probable cause existed to arrest them for disorderly conduct in violation of
a. Obstruction
Because the word “obstructs,” as used in
Plaintiffs do not dispute this finding of hindrance. Rather, they contend that a hindrance is not enough to constitute the proscribed obstruction. Relying on the first dictionary definition of “obstruct,” plaintiffs submit that
Plaintiffs point us to no Connecticut precedent clearly limiting the term “obstruct” in
On qualified immunity review, we need not here conclusively decide the scope of obstruction proscribed by Connecticut‘s disorderly conduct statute. We need only conclude, as we now do, that Connecticut has not so clearly limited obstruction to the condition of fully blocking pedestrian traffic as to foreclose a reasonable officer from making an arguably correct finding of probable obstruction based on plaintiffs’ actions in blocking part of the steps at the Red Nose Run. This is not to suggest that an officer would have arguable probable cause to arrest an individual for disorderly conduct under the Connecticut statute based simply upon the person‘s presence in a location being utilized by others. We conclude only that the facts known to the police in this case—namely, that individuals were holding a large banner, positioned partially in front of a clearly visible point of ingress and egress to be used predominantly by young children—permitted reasonable officers to think that probable cause existed to support arrests for disorderly conduct.
b. Predominant Intent
Plaintiffs contend that, even if a reasonable officer could have had probable cause to think that plaintiffs were obstructing pedestrian traffic at the Red Nose Run, the officer could not reasonably have thought that their predominant intent was to cause inconvenience, annoyance, or harm rather than to exercise their constitutional rights. We disagree.
An assessment of intent frequently depends on circumstantial evidence. See, e.g., United States v. MacPherson, 424 F.3d 183, 189-90 (2d Cir.2005) (collecting cases recognizing that mens rea elements of knowledge and intent are often proved through circumstantial evidence). But unlike at trial, where circumstantial evidence must support a finding of culpable intent beyond a reasonable doubt, a probable cause determination, and thus an arguable probable cause determination, can be made on “substantially less” evidence. State v. Clark, 255 Conn. 268, 292-93, 764 A.2d 1251 (2001); see Illinois v. Gates, 462 U.S. at 235 (“[T]he term ‘probable cause,’ according to its usual acceptation, means less than evidence which would justify condemnation.” (quoting Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813))). Moreover, because “the practical restraints on police in the field are greater with respect to ascertaining intent ..., the latitude accorded to officers considering the probable cause issue in the context of mens rea crimes must be correspondingly great.” Cox v. Hainey, 391 F.3d 25, 34 (1st Cir.2004); see Paff v. Kaltenbach, 204 F.3d 425, 437 (3d Cir.2000) (recognizing that arresting officers must make judgment calls in determining suspect‘s state of mind); see also Conner v. Heiman, 672 F.3d 1126, 1132 (9th Cir.2012) (observing that whether inference of innocent intent “was also reasonable, or even more reasonable, does not matter so long as the [culpable intent] conclusion was itself reasonable“).
With these principles in mind, we consider the totality of the circumstances at the time of the challenged arrests. At the outset, we recognize—as Sergeant Albert himself appears to have recognized—that plaintiffs’ protests about Ringling Brothers’ treatment of animals qualify as protected speech. The record demonstrates that Sergeant Albert never attempted to silence or delay that speech. Rather, he
In requesting relocation, Albert knew that organizers of the Red Nose Run had a permit for their activities. He knew that numerous young children would be participating in the Run and that those children, some by themselves, others with attending adults, would have to use the steps in moving between the walkway where races were to occur and the platform where a tent was set up for registration, prizes, and refreshments. Albert knew that some people had already complained that the protestors holding large banners were hindering pedestrian traffic on or near the steps. He anticipated that these concerns would only increase as more races were run. See Dec. 8, 2011 Tr. 93 (“There were more runs to come, more waves of runs to come. There would be more people wanting to use the platform.“).8 He also knew that there had been earlier complaints of children being frightened by protestors shouting at them. While Oatis assured Albert that the protestors did not wish any harm to befall the children, Albert was entitled—indeed obliged—to assess for himself the risks presented from the totality of the circumstances in attempting to accommodate the interests of all concerned. See Paff v. Kaltenbach, 204 F.3d at 437 (identifying nothing in probable cause jurisprudence requiring officer to accept suspect‘s assertion of innocence at face value); cf. Marcavage v. City of New York, 689 F.3d 98, 107 (2d Cir.2012) (recognizing that if two defendants could claim exemption from demonstration-free zone, others would be entitled to demand same, creating larger threat to security and order). In that regard, nothing in the record indicates that plaintiffs’ protests would not have been fully visible and audible to their intended audience from the proposed relocation area. As already noted, most persons protesting Ringling Brothers’ treatment of animals at the Red Nose Run had agreed to do so from the grassy knoll.
From these circumstances, a reasonable officer could have concluded that the only thing plaintiffs would lose by moving from the steps to the grassy knoll was the ability to hinder the movement of children and other race attendees as they traveled from the walkway to the patio platform. And therefrom, at least some reasonable officers could have inferred from plaintiffs’ refusal to relocate to a site where their right to protest would be undiminished, but their ability to obstruct would be lost, that their predominant intent in insisting on staying on the steps was to obstruct pedestrian traffic. See State v. Indrisano, 228 Conn. at 807 (allowing finding of predominant intent where circumstances demonstrate that expressive intent is “insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise” (internal quotation marks omitted)).
Because there was arguable probable cause for a reasonable officer to think that plaintiffs were engaged in the sort of disorderly conduct proscribed by
B. Discovery Sanctions
Rule 26(g)(1) of the Rules of Civil Procedure provides that all discovery responses “must be signed by” an attorney of record, or by the party personally, if unrepresented, which signature certifies the accuracy of any disclosed information “to the best of the person‘s knowledge, information, and belief.”
Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney‘s fees, caused by the violation.
The district court sanctioned defendants for violating Rule 26(g) in this case by striking Sergeant Albert‘s interrogatory responses, but it denied plaintiffs’ request for costs and fees, stating as follows: “Defendants note that the Plaintiffs’ counsel [i.e., Oatis] is pro se and cite authority indicating that his status as pro se counsel is a bar to such recovery. As the Plaintiffs have not addressed this argument, the Plaintiffs’ fee request is denied.” Order, No. 08-cv-601 (D. Conn.), ECF No. 60.
Plaintiffs now argue that the district court‘s ruling rests on an error of law because the general rule that a pro se attorney cannot recover attorney‘s fees does not apply to a pro se attorney who represents one or more plaintiffs in addition to himself. See Schneider v. Colegio de Abogados de Puerto Rico, 187 F.3d 30, 32 (1st Cir.1999) (awarding fees under
This court has not addressed whether a pro se attorney who represents plaintiffs in addition to himself may be awarded fees. We will not do so in the context of this discovery dispute because plaintiffs failed to raise the argument in the district court, thereby forfeiting it on appeal. See Katel Ltd. Liab. Co. v. AT & T Corp., 607 F.3d 60, 68 (2d Cir.2010). Accordingly, we affirm the denial of attorney‘s fees as a discovery sanction.
We note, however, that the district court did not specifically deny plaintiffs’ request for costs by reference to counsel‘s pro se status. Rather, its order is silent on that point. Defendants did not argue in the district court and Albert does not contend on appeal that a pro se plaintiff cannot be awarded costs pursuant to
III. Conclusion
To summarize, we conclude as follows:
- Because the trial record admits arguable probable cause to think that plaintiffs engaged in disorderly conduct with the predominant intent required by
Conn. Gen.Stat. § 53a-182(a)(5) , the district court properly entered judgment in favor of defendant Albert on the basis of qualified immunity. - Plaintiffs’ argument that they are entitled to attorney‘s fees as a discovery sanction on the ground that one plaintiff, despite appearing pro se, acted as counsel to the remaining plaintiffs is forfeited on appeal by their failure to raise it below. Nevertheless, because defendant does not dispute plaintiffs’ ability to recover costs, and because the district court failed specifically to rule on that application, we remand for clarification as to whether the district court awards costs pursuant to
Fed.R.Civ.P. 26(g)(3) .
The judgment of the district court is AFFIRMED in part and VACATED in part, and the case is REMANDED for further proceedings consistent with this opinion.
REENA RAGGI
UNITED STATES CIRCUIT JUDGE