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Fair v. Esserman

United States District Court, D. Connecticut

July 12, 2017

BARBARA FAIR, Plaintiff,



         On May 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)

         For the following reasons, Esserman's motion for summary judgment is denied in substantial part.

         I.Standard of Review

         Summary 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).

         When 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).

         “Only 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.

         If the 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.

         II. Background

         The 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).

         Barbara 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.

         Prior 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 as follows:

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.

         In 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.

         The 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.”

         Fair 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.”[1] 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).

         On 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 ...

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