Friend v. Gasparino

• Decision Date: 27 February 2023
• Docket Number: 20-3644
• Parties: Michael Friend, Plaintiff-Appellant, v. Richard Gasparino and City of Stamford, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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Michael Friend, Plaintiff-Appellant,
v.
Richard Gasparino and City of Stamford, Defendants-Appellees.

No. 20-3644

United States Court of Appeals, Second Circuit

February 27, 2023

ARGUED: DECEMBER 10, 2021

On Appeal from the United States District Court for the District of Connecticut

Plaintiff-Appellant Michael Friend appeals the judgment of the district court granting the motions for summary judgment of Defendants-Appellees Sergeant Richard Gasparino and the City of Stamford. In 2018, Friend responded to a Stamford Police Department distracted-driving enforcement operation by standing on a sidewalk a few blocks south of the police units displaying a sign that read

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"Cops Ahead." The police confiscated his signs, and Friend was arrested, charged, and briefly detained. Friend pursued five claims against Gasparino and the City for violations of his First, Fourth, and Fourteenth Amendment rights. We VACATE in part, AFFIRM in part, and REMAND the case for further proceedings consistent with this opinion.

DAN BARRETT (Elana Bildner, on the brief), ACLU Foundation of Connecticut, Hartford, CT, for Plaintiff Appellant Michael Friend.

ELLIOT B. SPECTOR (David C. Yale, on the brief), Hassett &George, PC, Simsbury, CT, for Defendant-Appellee Richard Gasparino.

BARBARA L. COUGHLAN, Assistant Corporation Counsel, City of Stamford, Stamford, CT, for Defendant-Appellee City of Stamford.

Before: LYNCH, SULLIVAN, and MENASHI, Circuit Judges.

MENASHI, CIRCUIT JUDGE

On April 12, 2018, Plaintiff-Appellant Michael Friend responded to a distracted-driving enforcement operation conducted by Defendant-Appellant Sergeant Richard Gasparino and the Stamford Police Department. Friend stood down the street from where the police were stationed and displayed a sign reading "Cops Ahead." Gasparino twice confiscated Friend's signs and ultimately arrested him for interfering with an officer under Connecticut General Statutes § 53a-167a(a). Friend sued Gasparino and the City of Stamford. Friend argued that Gasparino violated the First Amendment when he confiscated Friend's signs and violated the

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Fourth Amendment when he pursued a malicious prosecution of Friend. Friend further argued that the City was liable for Gasparino's decision to set Friend's bail at $25,000, a decision that Friend asserted violated his rights to due process and equal protection under the Fourteenth Amendment.

The district court granted summary judgment to Gasparino and the City, and Friend appealed. We vacate the judgment of the district court with respect to Friend's First and Fourth Amendment claims against Gasparino (Counts One, Two, and Three), affirm the judgment with respect to Friend's Fourteenth Amendment claims against the City (Counts Four and Five), and remand the case to the district court for further proceedings consistent with this opinion.

BACKGROUND

This case involves the arrest of Friend for his expressive conduct relating to police activity in Stamford, Connecticut. After telling Friend to move and twice confiscating Friend's signs, Gasparino arrested Friend on a charge of misdemeanor interference with an officer, Conn. Gen. Stat. § 53a-167a, and detained him on $25,000 bail. Friend's bail was adjusted early the next morning, and he was released on his own recognizance pending a hearing. At the hearing, state prosecutors dropped the charge. Friend later brought this action against Gasparino and the City.

I

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

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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

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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.^[1]

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

On October 22, 2018, Friend sued Gasparino under 42 U.S.C. § 1983 in federal district court. On August 13, 2019, he filed an amended complaint in which he added the City as a defendant. Friend alleged that Gasparino violated his First Amendment right to freedom of speech and his Fourth Amendment right against malicious prosecution. Friend also asserted claims against the City for violations of his Fourteenth Amendment rights to due process and equal protection. After discovery, all parties moved for summary judgment.

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The district court granted Gasparino's and the City's motions for summary judgment. Addressing Friend's First Amendment claims, the district court said that "it is questionable whether Friend's act of holding a 'Cops Ahead' sign a few blocks from the location in which officers were stopping distracted drivers[] rises to the level of expression of an opinion related to a matter of public significance." Friend, 490 F.Supp.3d at 500. According to the district court, "[h]is signs did not discuss a topic or express his opinion on it" and therefore Friend's speech was of "little, if any, public concern." Id. The district court further held that, even assuming Friend's speech was entitled to First Amendment protection, Gasparino's conduct "pass[ed] strict scrutiny" because the "compelling" governmental interest at stake involved "saving lives by stopping distracted drivers and issuing citations for their behavior." Id. at 500-01. That interest could be achieved "only ... without Friend's interference" such that there "was no less restrictive alternative" than confiscating his signs and removing him from the scene. Id. at 501 (internal quotation marks omitted). "Had Friend wished to complain about particular police procedures or in general about the police," the district court added, "he was free to do so elsewhere." Id.

The district court rejected Friend's Fourth Amendment claim for malicious prosecution. The district court concluded that "Gasparino had probable cause to arrest Friend" because "Gasparino warned [Friend] not to return with another sign or he would be arrested" and that "is precisely what Friend did." Id. at 503. According to the district court, Friend "was not arrested for verbal conduct, but rather for his physical conduct in returning to the scene, in direct contravention of Gasparino's instructions." Id.

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Finally, the district court dismissed Friend's due process and equal protection claims against the City. The district court concluded that, because "Friend has failed to state facts establishing that Gasparino was a policymaker" who had such "substantial authority" to set the City's bail policy, the municipality could not be held liable for his conduct under Monell v. Dep't of Social Servs., 436 U.S. 658 (1978). Friend, 490 F.Supp.3d at 505-06. The district court said that there was "insufficient evidence that in setting bail at $25,000, and holding Friend for several hours, the [C]ity of Stamford violated Friend's constitutional rights 'pursuant to a governmental policy or custom' that was 'sufficiently persistent or widespread as to acquire the force of law.'" Id. at 506 (quoting Reynolds v. Giuliani, 506 F.3d 183, 190, 192 (2d Cir. 2007)).

Friend timely appealed.

STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. Tiffany &Co. v. Costco Wholesale Corp., 971 F.3d 74, 83 (2d Cir. 2020)...