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Zalaski v. City of Hartford

United States Court of Appeals, Second Circuit

July 23, 2013

Lisa Zalaski, Animal Rights Front, Inc., Derek V. Oatis, Plaintiffs-Appellants,
v.
City of Hartford, Sergeant Daniel Albert, Defendants-Appellees. [*]

Argued: February 27, 2013

On appeal from a judgment of the United States District Court for the District of Connecticut (Bryant, J.), after a bench trial, plaintiffs challenge the rejection of their claims that defendant Albert violated their First, Fourth, and Fourteenth Amendment rights when he arrested them at a public event during which they were protesting the treatment of circus animals. Insofar as the challenged judgment is based both on a finding that plaintiffs' arrests were supported by probable cause and on qualified immunity, we affirm on the latter ground without reaching the former. Nevertheless, we vacate the judgment to the limited extent necessary to order remand for the district court to clarify whether plaintiffs are entitled to costs as a discovery sanction.

Derek V. Oatis, Lobo & Novak, LLP, Manchester, Connecticut, for Plaintiffs-Appellants.

Heidi L. Hamilton, Crumbie Law Group, Hartford, Connecticut, for Defendants-Appellees.

Before: Calabresi, Pooler, and Raggi, Circuit Judges.

Reena Raggi, Circuit Judge:

In this action pursuant to 42 U.S.C. § 1983, plaintiffs, the Animal Rights Front, Inc. ("ARF") and two of its members, Lisa Zalaski and Derek V. Oatis, appeal from a judgment of the United States District Court for the District of Connecticut (Vanessa L. Bryant, Judge), entered after a bench trial in favor of defendant, Hartford Police Sergeant Daniel Albert, on claims that Albert violated plaintiffs' First, Fourth, and Fourteenth Amendment rights when he arrested Zalaski and Oatis at the public site of a children's foot race during which plaintiffs were protesting the treatment of animals by race sponsor Ringling Brothers and Barnum & Bailey Circus ("Ringling Brothers"). See Zalaski v. City of Hartford, 838 F.Supp.2d 13 (D. Conn. 2012).[1] Specifically, plaintiffs contend that the district court erred in finding that (1) the challenged arrests were supported by probable cause to think that Zalaski and Oatis were engaged in disorderly conduct in violation of Conn. Gen. Stat. § 53a-182(a)(5)–(6), see id. at 50–55; and (2) even if probable cause were lacking, qualified immunity shielded Albert from liability for damages, see id. at 55–57.[2] We affirm on the ground of qualified immunity without deciding the question of whether there was actual probable cause to arrest Zalaski and Oatis for disorderly conduct under Connecticut law. See Pearson v. Callahan, 555 U.S. 223, 241 (2009); Doninger v. Niehoff, 642 F.3d 334, 346–47 (2d Cir. 2011).

I. Background

The pertinent facts, detailed in the district court's 80-page post-trial memorandum decision, are largely undisputed. See Zalaski v. City of Hartford, 838 F.Supp.2d 13. In any event, after a bench trial, we would set aside those factual determinations only for clear error, which is not evident here. See Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855–56 (1982).

A. The "Red Nose Run"

On April 23, 2006, Riverfront Plaza—a public park that the City of Hartford leased to Riverfront Recapture, a private, not-for-profit company—was the site of the first annual "Red Nose Run, " an event that invited children as young as age four to participate in five non-competitive foot races ranging in length from 50 yards to a mile. Approximately 300 persons, the majority of them young children, were expected to attend the event, a fundraiser for the Boys & Girls Club of Hartford. The Run's co-sponsors were the Hartford Marathon Association and Ringling Brothers. Indeed, the Run was scheduled to coincide with the arrival in Hartford of the Ringling Brothers Circus.

All Red Nose Run races began from the same point in Riverfront Plaza and progressed down a curved walkway. As the walkway veers leftward toward the Connecticut River, it is abutted on the right by a triangular patio platform, raised by three steps. The part of the patio approached from the walkway by the steps is approximately 66 feet in length. As it approaches the patio, the walkway is bordered on both sides by grassy knolls dotted with trees.

Red Nose Run organizers installed a temporary tent on the patio platform. There, children and their parents could register for, and reunite after, the races. At that site, each participating child also received a prize and complimentary refreshments were available.

B. The Challenged Arrests

1. Plaintiffs' Initial Refusal To Move from the Walkway

Joining the children and parents attending the Red Nose Run were approximately 10 to 15 animal rights activists, there to protest Ringling Brothers' treatment of animals. Four of these activists, including plaintiffs Zalaski and Oatis, were members of ARF.[3] Zalaski and Oatis carried a 6-foot by 4-foot banner proclaiming, "Got Freedom? The Animals Don't." The two other attending ARF members carried a 6-foot by 5-foot banner portraying a moribund elephant and the phrase "The Saddest Show on Earth."

At least some of the protestors, among them Zalaski and Oatis, initially located themselves on the walkway near the patio steps. A non-plaintiff ARF member testified that this was an "ideal spot" because it faced the start of the races and, thus, children would have to run directly at the protestors and their signs. Dec. 5, 2011 Tr. 46.

A number of parents complained to race organizers about protestors "yelling at" and "frighten[ing]" children at the race site. Dec. 8, 2011 Tr. 28, 32. They requested that the protestors be relocated away from the children. Organizers and a park ranger asked protestors on the walkway to move to one of the bordering grassy knolls, where other protestors had already situated themselves. ARF members, including Zalaski and Oatis, refused to move, prompting a call to the Hartford Police Department.

2. Sergeant Albert's Dealings with Zalaski and Oatis

Defendant Sergeant Albert was one of the officers who responded to Riverfront Plaza. Much of his interaction with plaintiffs leading to the challenged arrests is recorded in a video that is part of the record on appeal. In the video, an event organizer is heard asking protestors to "work with me, " Rec. 0:56, while Oatis tells Albert that the protestors intend no harm to children participating in the races, Rec. 1:20 ("The last thing we are going to do is have some kids trip on each other or have something bad happen."). After surveying the scene and learning that race organizers had a permit for the event, Sergeant Albert requested that ARF protestors on the walkway move up onto the patio steps. The ARF protestors, including Zalaski and Oatis, complied.

On the steps, the protestors no longer obstructed the walkway where races would be run, but, with their outstretched signs, they did partially block access to the registration/refreshment area. Upon hearing complaints to this effect, Sergeant Albert asked the ARF protestors on the steps to join the other protestors on the grassy knoll. At trial, Albert explained that he made the request because he expected the problem of free passage on the steps to worsen as more races were run and more people sought access to the platform. See Dec. 8, 2011 Tr. 93 ("[T]he platform was filling up, the obstructing I thought had increased because there w[ere] more people that had to, you know, work their way around this banner. There were more runs to come, more waves of runs to come. There would be more people wanting to use the platform."). Albert testified that he viewed his directive as a "reasonable compromise" between the protestors and other race attendees. Id. at 80. If the protestors on the steps moved to the nearby grassy knoll, where other protestors were already located, then "[t]he platform would not be obstructed. They [i. ...


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