United States District Court, D. Connecticut
RULING AND ORDER
R. UNDERHILL UNITED STATES DISTRICT JUDGE.
7, 2015, the plaintiff, Barbara Fair, filed a complaint
against the defendant, Dean Esserman, the Chief of the New
Haven Police Department, in both his personal and official
capacities, alleging that Esserman violated Fair's First
Amendment rights, and therefore 42 U.S.C. § 1983, by
preventing her from attending two public meetings to discuss
police misconduct following her critical comments about the
police in a previous meeting. (doc. 1) Esserman has moved for
summary judgment on the basis that the meetings were not open
to the public, or alternatively that the limitation on
Fair's speech and attendance at the meetings was
permissible. (doc. 51) On February 28, 2017, I held a hearing
on that motion. (doc. 59)
following reasons, Esserman's motion for summary judgment
is denied in substantial part.
judgment is appropriate when the record demonstrates that
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff
must present affirmative evidence in order to defeat a
properly supported motion for summary judgment).
ruling on a summary judgment motion, the court must construe
the facts of record in the light most favorable to the
nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the moving party.
Anderson, 477 U.S. at 255; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970); see also Aldrich v. Randolph Cent.
Sch. Dist., 963 F.2d. 520, 523 (2d Cir. 1992) (court is
required to “resolve all ambiguities and draw all
inferences in favor of the nonmoving party”). When a
motion for summary judgment is properly supported by
documentary and testimonial evidence, however, the nonmoving
party may not rest upon the mere allegations or denials of
the pleadings, but must present sufficient probative evidence
to establish a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
when reasonable minds could not differ as to the import of
the evidence is summary judgment proper.” Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see
also Suburban Propane v. Proctor Gas, Inc., 953
F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits
evidence that is “merely colorable, ” or is not
“significantly probative, ” summary judgment may
be granted. Anderson, 477 U.S. at 249-50.
The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact. As to materiality, the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
Id. at 247-48. To present a “genuine”
issue of material fact, there must be contradictory evidence
“such that a reasonable jury could return a verdict for
the non-moving party.” Id. at 248.
nonmoving party has failed to make a sufficient showing on an
essential element of his case with respect to which he has
the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a
situation, “there can be ‘no genuine issue as to
any material fact, ' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 322-23; accord Goenaga v. March of Dimes
Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)
(movant's burden satisfied if he can point to an absence
of evidence to support an essential element of nonmoving
party's claim). In short, if there is no genuine issue of
material fact, summary judgment may enter. Celotex,
477 U.S. at 323.
following relevant facts are taken from the parties'
Local Rule 56 Statements and Fair's Affidavit and are
undisputed unless otherwise indicated. See
Def.'s L.R. 56(a)(1) Stmt. (doc. 51-1) [hereinafter
“Def.'s 56a1”]; Pl.'s L.R. 56(a)(2) Stmt.
(doc. 54) [hereinafter “Pl.'s 56a2”]; Fair
Aff. (doc. 55-1).
Fair is a resident of West Haven, Connecticut. She considers
herself to be an activist. During the relevant period, Dean
Esserman was the Chief of the New Haven Police Department,
although he has subsequently stepped down. As Chief of
Police, Esserman held “ComStat” meetings in which
District Managers from the Department shared information
about the police activities in their districts. ComStat
meetings were held on a roughly weekly basis, although there
were weeks during which no such meetings occurred, and the
meeting schedules were not listed on the City website or
otherwise advertised to the public. The meetings did not have
a formal agenda, although Esserman stated in his deposition
that certain issues related to privacy and internal
investigations were never discussed at the meetings.
to the incidents giving rise to this complaint, Esserman had
opened ComStat meetings to public attendance. In his
deposition, Esserman described the public's participation
It was not a forum for discussion. It was to let people see
how the police department worked in a transparent way, and if
people had presentations they wanted to make we would try to
schedule them in.
Esserman Dep., Def.'s 56a1, Ex. 5 at 32-33 (doc. 51-7);
see also Id. at 35 (“[T]he format of the
meeting was very businesslike[.] . . . [I]t was really an
opportunity for people to see us work in a transparent way. .
. .This was not a community forum.”). Esserman further
asserted that the meetings were “not really” open
to questions from public attendees, but stated that “at
the end of the meeting we'd go around the room and say
does anyone have anything left out?” Id. at
34. Members of the public were generally not required to ask
for permission before attending the meetings, id. at
33, although they could be excluded from meetings in which
particularly sensitive topics would be raised, id.
at 50. Prior to the events giving rise to this action, Fair
had attended two or three ComStat meetings.
March of 2015, Fair saw a video of the New Haven Police
Department arresting a 15-year-old girl in a manner she
thought was excessive. She participated in public protests
against the actions of the police at City Hall and at the
police headquarters. At the City Hall protest, Fair asserts
that she overheard police officers and counter-protesters
making disparaging and racially-charged remarks. Shortly
thereafter, Fair attended one of the Department's ComStat
meetings (“Meeting 1”). Esserman was not present
at that meeting, which was presided over by the Assistant
Chief of the Department. At the end of Meeting 1, the
Assistant Chief moved to close the meeting without formally
asking for comments from the community. Fair Dep., Def.'s
56a1, Ex. 1 at 56 (doc. 51-3). Fair nevertheless asked the
Assistant Chief for permission to speak, which permission was
granted. Although the content of her speech was not recorded,
the parties appear to generally agree that she was critical
of the police, expressed concern over the comments she had
heard at the protest, and questioned some officers'
commitment to serve minority populations in New Haven. The
parties disagree whether Fair also discussed an internal
affairs investigation into one of the officers involved in
the contentious arrest. None of those issues had previously
been discussed during the meeting.
parties disagree about the reception of Fair's comments.
Fair stated in her deposition that her comments upset one
officer, but that a second officer told him to let her speak
and expressed his agreement with her concerns about the
protests. Fair Dep. at 51-52; see also Fair Aff.,
Pl.'s 56a2, Ex. 1 at ¶ 11 (doc. 55-1). Following
that exchange, Fair stated that the meeting was closed
without further incident. See Fair Dep. at 52; Fair.
Aff at ¶ 11. Esserman stated that he was informed by
attendees at the meeting that Fair's conduct had been
“disruptive, ” “loud” and
“argumentative.” Esserman Dep. at 46-47. He did
not, however, submit any evidence from a party who
experienced the alleged disruption first-hand. And the
parties appear to agree that Fair was not reprimanded, asked
to stop talking, or asked to leave Meeting 1 as a result of
her comments. After Meeting 1, Fair emailed the Assistant
Chief about her comments. Although the email and his response
are not in the record for this motion, the parties agree that
the email included Fair's admission that: “I know I
ruffled some feathers.”
returned to the Department for the following ComStat meeting
(“Meeting 2”). Esserman approached Fair before
the beginning of the meeting and asked her to leave. Esserman
stated in his deposition that he told Fair her comments had
been “disruptive” and had made other people
“very uncomfortable.” Esserman Dep. at 51-52.
Fair stated she was asked to leave on the grounds that her
comments at Meeting 1 had been “rude and
disrespectful.” Fair Dep. at 65. Fair asked whether the
meeting was still a “public meeting.”
Id. Esserman said that it was. Id. Fair
asked whether she was under arrest. Id. Esserman
said she was not. Id. Fair refused to leave, stating
that “as long as it's a public meeting I'm
going to sit here.” Id. at 66. Esserman then
closed the meeting to the public and asked all members of the
public to leave. Id.; see also Def.'s
56a1 at ¶¶ 29-33 (describing the same arc of events
with less detail).
April 9, 2015, Fair attempted to enter a third ComStat
meeting (“Meeting 3”). She was accompanied by
Connecticut State Senator Gary Winfield. Esserman Dep. at 69.
Sergeant John Wolcheski was on duty at the front desk at that
time. He had previously been informed that the meeting was
closed to the public. Wolcheski accordingly denied access to
Fair and Winfield. They left without speaking to Esserman.
Wolcheski also initially denied access ...