613 F.3d 336 (2nd Cir. 2010), 08-3671-cv, Zalaski v. City of Bridgeport Police Dept.

Docket Nº:08-3671-cv.
Citation:613 F.3d 336
Opinion Judge:PER CURIAM:
Party Name:Lisa ZALASKI, Plaintiff-Appellant, v. CITY OF BRIDGEPORT POLICE DEPARTMENT and Deputy Chief James A. Honis, Defendants-Appellees. and Friends of Animals, Inc., Plaintiff,
Attorney:Derek V. Oatis, Lobo & Novick, LLP, Manchester, CT, for Plaintiff-Appellant. Betsy A. Edwards, Office of the City Attorney (John R. Mitola, on the brief), Bridgeport, CT, for Defendants-Appellees.
Judge Panel:Before: McLAUGHLIN, POOLER and WESLEY, Circuit Judges. WESLEY, Circuit Judge, dissenting:
Case Date:July 27, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 336

613 F.3d 336 (2nd Cir. 2010)

Lisa ZALASKI, Plaintiff-Appellant,


Friends of Animals, Inc., Plaintiff,


CITY OF BRIDGEPORT POLICE DEPARTMENT and Deputy Chief James A. Honis, Defendants-Appellees.

No. 08-3671-cv.

United States Court of Appeals, Second Circuit.

July 27, 2010

Argued: June 26, 2009.

Page 337

Derek V. Oatis, Lobo & Novick, LLP, Manchester, CT, for Plaintiff-Appellant.

Betsy A. Edwards, Office of the City Attorney (John R. Mitola, on the brief), Bridgeport, CT, for Defendants-Appellees.

Before: McLAUGHLIN, POOLER and WESLEY, Circuit Judges.


This case presents a conflict between an individual's assertion of her First Amendment right to engage in public protest and the official responsibility to maintain public safety and order. We emphasize at the outset that we take no position in this opinion as to the merits of the First Amendment claim at issue here. We believe, however, that the spartan analysis conducted by the district court falls short of that required by First Amendment jurisprudence. We therefore conclude that the case should be remanded to the district court so that a more comprehensive inquiry might be conducted.


The complaint in this action was filed on October 27, 2006, in the United States District Court for the District of Connecticut. Lisa Zalaski, a citizen of Connecticut, names as defendants the City of Bridgeport Police Department (" the City" ) and its Deputy Chief of Police, James Honis.1

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Zalaski's claims arise from her participation in protests in support of animal rights taking place outside of the Arena at Harbor Yard (" the Arena" ), a 10,000-seat performance venue which typically hosts between 130 and 150 events a year. The Arena is owned by the City of Bridgeport and managed by a private enterprise called " Centerplate." Centerplate manages the Arena pursuant to the terms of an operating agreement, a copy of which is not contained in the record on this appeal.

The protest demonstrations at issue took place in an area in front of the Arena known as " the Plaza," which the defendants describe as " a large, semi-circular, paved area" through which patrons must walk in order to reach the Arena's entrances and attend performances held inside. Zalaski alleges, and the defendants do not dispute, that since the Arena was opened, in 2001, annual protests in support of animal rights have been held in the Plaza during the appearance at the Arena of Ringling Brothers and Barnum and Bailey Circus (" the Circus" ). Specifically, Zalaski states that these protests " sought to engage patrons of these performances in civil discussion in order to dissuade them from further attendance and support of these performances until the use and confinement of non-human animals by the Circus ceased."

Prior to 2006, according to Zalaski, animal rights protestors applied for and received permits from the City to demonstrate in the Plaza during Circus performances, and none of these demonstrations resulted in " arrest, infractions, or imposition of any criminal charges or activities." On October 10, 2006, Zalaski was part of a group of demonstrators who successfully applied to the City for a permit to hold a demonstration at the Circus's performances scheduled for later in the month. She alleges that the group " intended, through the use of oral communication, leafleting, signs and placards, ... to express their opposition" to the removal of " non-human animals, including elephants, from the wild, denying them the ability to engage in normal activities and social interactions, confining them and maintaining them in captivity, all for the purpose of providing ‘ entertainment.’ "

On October 25, 2006, Zalaski and other demonstrators arrived at the Plaza, situating themselves about 30-40 feet from the entrances to the Arena. Zalaski alleges, however, that the demonstrators were confronted by Honis and other City police officers and " physically pushed to an area approximately 100 feet from the entrance to the Arena." At this distance, it is alleged, the group " could not engage patrons in normal conversation, distribute literature, [or] have their signs read." Shortly thereafter, " a number of individuals, all standing approximately 100 feet from the entrance to the Arena in a location verbally designated by various police officers, were arrested." According to an official police report, nine individuals were arrested and charged with breach of the peace, interfering with police officers, criminal trespass, and inciting to riot. It appears from the record that these charges were resolved by guilty pleas and the imposition upon each demonstrator of a $35 fine, plus costs. According to her affidavit, Zalaski herself was not arrested because she, along with two other demonstrators, purchased a ticket to see the Circus and was thereafter allowed to demonstrate " within five feet of the ... front of [the Arena] for approximately an hour."

As noted above, the complaint was filed two days after the October 25, 2006 demonstration.

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The complaint asserts claims under the First Amendment to the United States Constitution via 42 U.S.C. § 1983, and seeks declaratory and injunctive relief, as well as compensatory damages.2 On the day the complaint was filed, after holding a hearing, U.S. District Judge Janet C. Hall granted a temporary restraining order, the precise terms of which are not clear from the record. See Friends of Animals, Inc. v. City of Bridgeport Police Dep't et al, No. 3:06-cv-1708, 2007 WL 201245, at *2 (D.Conn. Jan.23, 2007). Three months later, Judge Hall denied the City's motion to dismiss the complaint for failure to name a necessary party, i.e., Centerplate, the private firm which manages the Arena. Id. at *4.

In anticipation of the Circus's performances at the Arena in October 2007, Zalaski sought a renewal of the temporary restraining order. This renewal was denied by U.S. District Judge Vanessa L. Bryant, to whom the case had been transferred. Judge Bryant specifically considered the following " request" by the City: " At the present time, the defendants have requested that the plaintiffs demonstrate on the plaza no closer than 80 feet from the two main entrances to the arena." Friends of Animals, Inc. v. City of Bridgeport Police Dep't et al, 2007 WL 3124872, at * 1 (D.Conn. Oct.25, 2007). Judge Bryant continued by holding that the Plaza was not a " traditional public forum," which would require the highest level of scrutiny of any government restriction of First Amendment activity taking place therein:

On the basis of the evidence presented by the parties, the Court finds that the plaza, which has been in existence only since 2001, has not been devoted to assembly and debate. The evidence indicates that the plaza is used primarily by patrons of the arena for the purpose of entering and exiting the facility before and after performances inside. In other words, people ordinarily would not visit the plaza unless they intended to enter the arena to view a performance inside. The plaza is consequently not a public forum.

Id. at *2 (internal citation and quotation omitted).

Judge Bryant assumed arguendo that the Plaza was a " limited public forum," because " [s]ince the arena opened in 2001, the city and arena management have allowed the plaintiffs to demonstrate on the plaza." Id. She added, however, that she " reserve[d] final determination of whether that permissive use of the plaza renders it a limited public forum," until the filing of dispositive motions. Id. Judge Bryant proceeded to hold that " the 80-foot restriction" was a permissible restriction upon the plaintiffs' First Amendment activity:

The restriction is content neutral because it applies to all demonstrators at the circus regardless of subject matter and viewpoint. The restriction serves a significant government interest, namely, security and orderly crowd movement, and the restriction is narrowly tailored to serve that interest because it does not burden substantially more speech than is necessary.... [T]he defendants' exhibit 1, which is a DVD of a portion of the demonstration in 2001, includes images of demonstrators standing more than 80 feet away from the arena, and

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those demonstrators could still be seen and heard by patrons heading to the arena. The Court consequently concludes that the 80-foot restriction leaves an ample alternative channel of communication available to the plaintiffs.

Id. at * 3.

In a brief order, dated June 20, 2008, Judge Bryant granted the defendants' motion for summary judgment. The order reads, in full, as follows:

ORDER granting defendants' Motion for Summary Judgment against the only remaining defendant [ sic ], Zalaski. The Court previously issued an opinion, in which it determined that the plaza in front of the arena is not a public forum, and Zalaski has not presented any further evidence suggesting that the plaza could be a public forum. Consistent with [its previously issued opinion], the Court assumes for the purposes of the present motion that the plaza is a limited public forum because the city and the arena management have allowed Zalaski to demonstrate there. The 80-foot restriction previously approved by the Court is content neutral, serves the significant government interest of security and orderly crowd movement, and does not burden substantially more speech than is necessary. The Court does not need to determine whether a greater restriction would also satisfy the applicable test. The complaint arises from demonstrations in the plaza in October 2006, and Zalaski states in her affidavit that she purchased a circus ticket and demonstrated closer to the arena than 80 feet for approximately one hour. Accordingly, there is no genuine issue of material fact as to whether Zalaski's First Amendment rights were violated, and the defendants are...

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