On February 27, 2023, the Second Circuit Court of Appeals decided Friend v. Gasparion[i], in which the court examined whether an officer violated the First and Fourth Amendments when he arrested a man for holding a sign warning of a police traffic enforcement operation.  The relevant facts of Friend are as follows:

On April 12, 2018, the Stamford Police Department conducted a distracted-driving enforcement operation near the intersection of Hope and Greenway Streets in Stamford. The officers ticketed drivers for violations of Connecticut General Statutes § 14-296aa(b), which prohibits “using a hand-held mobile telephone” or “mobile electronic device” to “call” or “text” while driving. The operation was “intended to enforce the law prohibiting the use of cell phones while driving to reduce motor vehicle collisions.” J. App’x 352. Gasparino acted as a “spotter,” alerting officers farther down the street of drivers he believed were operating vehicles while using cell phones. Id. at 336.

Friend saw the police presence and, at approximately 4:00 p.m. that afternoon, sought to express his “object[ion] to the manner in which police were conducting the operation” by displaying a sign. Friend v. City of New Haven Police Dep’t, 490 F. Supp. 3d 492, 496 (D. Conn. 2020) (internal quotation marks omitted). Friend wrote “Cops Ahead” on the sign and displayed it while standing on a public sidewalk approximately two blocks south of the operation, near the intersection of Hope and Cushing Streets. Friend alleges that Gasparino approached him and advised him to “leave the spot where he was standing.” Id. Gasparino told Friend that he was “interfering with our police investigation,” took Friend’s sign, and instructed Friend not to return with a sign or else he would be arrested. Id.

Friend then walked one block further south and displayed a second sign, which also read “Cops Ahead,” near the corner of Hope and Fahey Streets. He again stood on the public sidewalk and displayed the sign to passing cars. After about thirty minutes, Gasparino again approached and this time “arrested Friend for ‘interfering’ with the distracted driving investigation.” Id. Gasparino charged Friend with misdemeanor interference with an officer in violation of Connecticut General Statutes § 53a-167a(a).

Friend was transported to Stamford police headquarters, where he was booked on the misdemeanor charge. Gasparino also confiscated Friend’s two cell phones. Although Friend was charged with a misdemeanor, had no criminal record, and was a longtime resident of Stamford, Gasparino set Friend’s bail at $25,000. Gasparino testified that in setting the bail amount he considered Friend’s “actions on scene” and “his personality.” Id. Friend did not post bail, and he was held at the police station. At approximately 1:30 a.m. the following day, a bail commissioner reassessed Friend’s bail to zero dollars and a promise to appear in court. Friend was released at approximately 2:00 a.m.

At Friend’s hearing, the state’s attorney entered a nolle prosequi and stated to the court that Friend had in fact “helped the police.” J. App’x 318. The prosecutor explained that “Friend actually was helping the police do a better job than they anticipated because when [drivers] saw the signs, they got off their cell phones.” Id. The misdemeanor interference charge was dismissed.[ii]

Friend sued the officer for violating his rights under the First and Fourth Amendment and sued the city for having a policy that allowed the officer to set a high bail on the charge in violation of his due process rights under the Fourteenth Amendment.  The district court granted summary judgment to the officer holding that the officer did not violate First or Fourth Amendment and granted summary judgment to the city because Friend failed to prove that the officer was a final policymaker regarding bail.  Thus, the case was dismissed.  Friend appealed to the Second Circuit Court of Appeals.

I. Fourth Amendment Claim

The court of appeals first set out to determine if the officer violated the Fourth Amendment, as it pertains to malicious prosecution, when he arrested Friend.  The court stated that, to establish a Fourth Amendment claim for malicious prosecution, the plaintiff must satisfy the elements of malicious prosecution under Connecticut law, the state where this incident occurred.  The court stated

Under Connecticut law, “a malicious prosecution claim requires proof that (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice.” Id. (internal quotation marks omitted). “Because lack of probable cause is an element of a malicious prosecution claim, the existence of probable cause is a complete defense to a claim of malicious prosecution.” Stansbury v. Wertman, 721 F.3d 84, 94-95 (2d Cir. 2013) (internal quotation marks omitted).[iii]

The district court held that probable cause was present to arrest Friend for “interfering with a police officer” under state law (see Section 53a-167a(a)).

After a review of the facts, the court of appeals held that there was no probable cause to arrest Friend for violating the “interfering with a police officer statute.”  Specifically, the court stated

Section 53a-167a(a) provides that “[a] person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer … in the performance of such peace officer’s … duties.” Conn. Gen. Stat. § 53a-167a(a). The Connecticut Supreme Court has expressly “construe[d] § 53a-167a to proscribe only physical conduct and fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace.State v. Williams, 205 Conn. 456, 534 A.2d 230, 239 (Conn. 1987) (internal quotation marks omitted). Thus, the Connecticut Supreme Court has “exclude[d]” from the scope of § 53a-167a “situations in which a defendant merely questions a police officer’s authority or protests his or her action.Id. at 238.[iv]

Thus, because the sign that read “cops ahead” did not contain fighting words and because Friend took no physical action to interfere with the officer’s enforcement operation, there was no probable cause to arrest him. As such, the court of appeals reversed the district court’s dismissal of this claim and remanded the case to the district court to examine the remaining elements of the malicious prosecution claim.

II. First Amendment Claim

Next, the court of appeals examined whether the officer violated Friend’s rights under the First Amendment when he took his signs and arrested him.  The district court held that Friend’s speech was not eligible for First Amendment protection, and if it was, that the officer’s actions satisfied the “strict scrutiny” test because of the states compelling interest in preventing traffic deaths.

The court of appeals first examined the relevant law and stated

As a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'” Ashcroft v. ACLU, 535 U.S. 564, 573, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983)). “[T]his principle, like other First Amendment principles, is not absolute.” Id. The First Amendment has historically “permitted restrictions upon the content of speech in a few limited areas.” United States v. Stevens, 559 U.S. 460, 468, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992)). “These historic and traditional categories long familiar to the bar” include “obscenity, defamation, fraud, incitement, and speech integral to criminal conduct”—”well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any [c]onstitutional problem.” Id. at 468-69[v]

The court of appeals then examined the district court’s first reason for dismissing this claim, particularly it’s holding that Friend’s speech was not eligible to First Amendment protection.  The district court reasoned that a sign that read “cops ahead” was not expressing an opinion or ideas or addressing a matter of public significance.  The court of appeals disagreed and noted that the First Amendment protects a person’s right to oppose or challenge police action.  Further, the court of appeals noted that there is no requirement that a private person be speaking on “a matter of public significance” in order to receive the protection of the First Amendment.    The court stated

The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” City of Houston v. Hill, 482 U.S. 451, 462-63, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987).[vi]

The court also held that the officer’s actions did not satisfy the strict scrutiny test for regulating speech.

Thus, the court of appeals reversed the decision of the district court and remanded this claim back to the district court.

III. Fourteenth Amendment Claim Against the City

Lastly, the court set out to determine if the city was liable under the Fourteenth Amendment for violating Friend’s due process rights by allowing the officer to serve a policymaker regarding bail.  The court first discussed the law related to constitutional municipal liability and stated

In Monell, the Supreme Court held that “municipalities and other local government units” are “persons” who may be sued under § 1983. Id. at 690. At the same time, Monell emphasized that “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691. Thus, “[t]he elements of a Monell claim are (1) a municipal policy or custom that (2) causes the plaintiff to be subjected to (3) the deprivation of a constitutional right.” Agosto, 982 F.3d at 97. In other words, municipalities may not be held liable “unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell, 436 U.S. at 691 (emphasis added). “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011).[vii]

The plaintiff argued that the officer was a final policymaker because he was allowed to set bail.  However, the court of appeals noted that the officer’s decision on bail was not “final” because it was reviewed by the bail commissioner within hours.  The court of appeals noted

[D]ecisions “reviewable by higher-level officials … could not be ‘final’ policymaking decisions”; see also Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 638 (11th Cir. 1991)[viii]

As such the court of appeals affirmed the district court’s grant of summary judgment on this claim.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 20-3644 (2nd Cir. Decided February 27, 2023)

[ii] Id. at 3-5

[iii] Id. at 9-10 (emphasis added)

[iv] Id. at 11 (emphasis added)

[v] Id. at 15 (emphasis added)

[vi] Id. at 18 (emphasis added)

[vii] Id. at 28 (emphasis added)

[viii] Id. at 29 (emphasis added)

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