Zalaski et al v Hartford, et al
ORDER granting in part and denying in part 48 Defendants' Motion for Summary Judgment. See the attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 3/31/10. (Engel, J.)
UNITED STATES DISTRICT COURT
D IS T R IC T OF CONNECTICUT
L IS A ZALASKI, ANIMAL RIGHTS F R O N T , INC., and DEREK V. OATIS P la in tiffs , v. C IT Y OF HARTFORD and S E R G E AN T ALBERT, D e fe n d a n ts .
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C IV IL ACTION NO. 3 : 0 8 -c v -6 0 1 (VLB)
M a r c h 31, 2010
M E M O R AN D U M OF DECISION GRANTING IN PART AND DENYING IN PART D E F E N D AN T S ' MOTION FOR SUMMARY JUDGMENT [DOC. # 48] T h e Plaintiffs, Lisa Zalaski (hereinafter "Zalaski"), Derek Oatis ("Oatis"), and An im a l Rights Front, Inc. ("Animal Rights") initiated this action against the City of H a r tfo r d ("Hartford") and Sergeant Daniel Albert ("Albert") in connection with Z a la s k i and Oatis' arrest by members of the City of Hartford Police Department d u r in g an April 23, 2006 Animal Rights protest at the Hartford Marathon F o u n d a tio n , Inc.'s ("Hartford Marathon") Red Nose Run event. The Plaintiffs a s s e r t two claims for relief pursuant to 42 U.S.C. § 1983 for violation of their First Am e n d m e n t rights, claims for false arrest, false imprisonment and malicious p r o s e c u tio n under 42 U.S.C. § 1983 and Connecticut state law, a claim for violation o f the Constitution of the State of Connecticut, and Connecticut state law claims fo r intentional and reckless infliction of emotional distress. T h e Defendants now move for summary judgment pursuant to Rule 56 of the F e d e r a l Rules of Civil Procedure against the Plaintiffs as to all claims. [Doc. #48]. The Defendants contend that there is an absence of a genuine issue of material
fact as the City of Hartford is entitled to municipal immunity, Sergeant Albert is e n title d to qualified immunity, and the Plaintiffs cannot establish the required e le m e n ts for their any of their claims. For the reasons stated hereafter, the D e fe n d a n t's motion for summary judgment is GRANTED IN PART and DENIED IN P AR T . Specifically, summary judgment is granted in favor of the Defendants on th e Plaintiffs' claims for intentional and reckless infliction of emotional distress. The Plaintiffs' remaining claims shall go forward to trial. I. Factual Background T h e following facts are undisputed for the purpose of the Defendants' m o tio n for summary judgment unless otherwise noted. On April 23, 2006, the H a r tfo r d Marathon Foundation, Inc. organized a "Red Nose Run" event that was h e ld at the Mortensen Riverfront Plaza (the "Plaza") in Hartford, Connecticut. The P la z a spans over Interstate 91 South of the Founders Bridge between the C o n n e c tic u t River and Columbus Boulevard. The Defendants contend that the P la z a is owned by the State of Connecticut and has been leased to the City of H a r tfo r d pursuant to a January 24, 1992 Airspace Lease Agreement. The Plaintiffs in turn note that the lease of the property from the State of Connecticut is only the p r o p e r ty which is within the "air space" over Interstate 91, and that the D e fe n d a n ts have failed to provide the "Airspace Lease Agreement" referenced in v io la tio n of Rule 56(e)(1) and Local Rule 56(3). The Defendants also contend that th e City has subleased the Plaza to Riverfront Recapture, Inc., pursuant to a lease a g r e e m e n t dated January 26, 1998, and that under the lease agreement, the City of H a r tfo r d had limited responsibilities, including the provision of police and other 2
customary public safety services, and that the Hartford Police Department's sole d u ty is to provide police protection. The Plaintiffs again note that the Defendants h a v e failed to provide the "Airspace Lease Agreement" referenced in violation of R u le 56(e)(1) and Local Rule 56(3). The Red Nose Run is a community and family-oriented event held to p r o m o te the circus in anticipation of circus performances held in Hartford. The e v e n t consists of a "race" for young children. As a result, the attendees of the R e d Nose Run are primarily families and young children. For the event, the Red N o s e Run organizers erected a tent at the Mortensen Riverfront Plaza that children a n d adults traveled in and out of during the event. W h ile the Hartford Marathon Foundation obtained a permit issued by the C ity of Hartford to use the Plaza for the Red Nose Run, the Plaintiffs note that the e v e n t was co-organized by Feld Entertainment, which they identify as the parent c o m p a n y to Ringling Brothers and Barnum and Bailey Circus. The Plaintiffs also c o n te n d that Feld Entertainment paid all fees relating to the event. The Plaintiffs, Derek V. Oatis and Lisa Zalaski, along with other members of th e Animal Rights Front, Inc., attended the Red Nose Run at the Riverfront Plaza o n April 23, 2006 for the purpose of protesting the use of animals in the circus. The Plaintiffs did not obtain a permit for their protest activities. The parties dispute the nature of the Plaintiffs' protest activities. The D e fe n d a n ts claim that the Plaintiffs "yelled at" event attendees, including children, d u r in g their protest. Def. Loc. R. 56(a)(1) Statement ¶ 15. The Defendants further c o n te n d that the Plaintiffs and other protestors "obstructed" pedestrian traffic, 3
and as a result, the Red Nose Run could not be conducted as planned. Id. ¶ 16-17. Believing that the Plaintiffs' demonstration posed a safety hazard, Kay Page G r e a s e r , the event organizer, called the police dispatcher and requested police a s s is ta n c e . She informed the dispatcher that the protestors were obstructing the e v e n t. Id. ¶ 18. The Plaintiffs contend, however, that they remained clear of the running p a th of children and did not obstruct any attendees or participants. Pl. Loc. R. 5 6 (a )(2 ) Statement ¶ 1. They further allege that the only reason that Ms. Greaser w a n te d the Plaintiffs to move was because of the content of their message and th e ir viewpoint that the circus is harmful to animals. Id. ¶ 2. In support of their c la im , the Plaintiffs cite the following portions of Ms. Greaser's deposition te s tim o n y: A: Well, there are several ways to use the word "obstruction" in my o p in io n . Obstruction can be physical. It can also be mental, causing problems a n d /o r feelings for the people that are trying to have a good time. Q : So let me back up then. In your direct examination I believe you stated th a t protestors obstructed the race itself. A: U-huh . . . Q: Did Mr. Oatis obstruct the race as you observed? A: By being in a place that was in the way of conducting the race. Q : Did you have these kids run up the stairs [where Mr. Oatis was s ta n d in g ]? A: No . . . Q: Was Mr. Oatis, when he stood on that step with his banner, the step to th e registration tent, was he obstructing kids running? A: No. Q: So when you described that he was obstructing, you meant only access to the registration tent? A: No. Q : What else did you mean? A: I meant he was obstructing the running of the race, because of the p h ys ic a l banner visually causing a problem with people who were trying to have a g o o d time. 4
Q: Can you explain how he visually caused a problem with people trying to h a v e a good time? A: Visually and orally. I believe Mr. Oatis was talking quite a bit and yelling th in g s , and was also holding a banner that had words on it that were probably not c o m fo r ta b le for the families. Q : How were the words not comfortable for the families? A: I don't remember. I don't know. I have no idea what the banner said . . . Q: So words that, for example, said please don't fund the circus would be in a p p ro p r ia te ? A: If that's what it said, yes . . . Q : If his banner said Got Freedom question mark would that be in a p p r o p r ia te in your opinion? A: I'm going to . . . say yes to that, because I think any saying anything is in a p p r o p r ia te in that particular situation in front of the registration test. Q : So if he had a banner that said "have a good race kids" that would be in a p p ro p r ia te ? A: No . . . Q : How was [Mr. Oatis's] banner inappropriate? A: Because it was obstructing the positive feeling of the race. Q : So when you say obstructing, you mean the message contained in the b a n n e r was contrary to the atmosphere of the event? A: Yes. Q: So the words the meaning of the words was the obstruction in your o p in io n ? A: Yes . . . Q : So did any other protestors obstruct the event race? A: No. Q : So Mr. Oatis and Ms. Zalaski and their banner were the only obstruction to the event? A: Correct. Q : And the only obstruction they made was blocking approximately five feet o f a thirty-foot step, correct? A: Uh-huh. Pl. Exh. B, Greaser Dep., at 49-61. In response to Ms. Greaser's call, Sergeant Daniel Albert, along with officers K e v in Hart, Roger Kergaravat and Donald Rodrique, were dispatched to the Plaza. Upon arriving at the Plaza, Ms. Greaser notified Sergeant Albert that the Hartford M a r a th o n Foundation had obtained a permit to use the Plaza for the Red Nose Run a n d that the demonstrators continued to "obstruct." Def. Loc. R. 56(a)(1) 5
Statement ¶ 21. Sergeant Albert asked the demonstrators to relocate to an area s e v e r a l yards to the side of the location in which they were standing. The P la in tiffs refused to move. Sergeant Albert then told the Plaintiffs that if they did n o t move, they would be arrested. When the Plaintiffs still refused to relocate, S e r g e a n t Albert ordered Officers Kevin Hart and Donald Rodrigue to arrest them. Officer Hart arrested the Plaintiffs and charged them with obstruction of free p a s s a g e . Sergeant Albert and Officer Hart claim that they believed probable cause e x is te d to arrest the Plaintiffs for obstruction of free passage, criminal trespass, a n d disorderly conduct. The Plaintiffs, on the other hand, assert that Sergeant Alb e r t requested them to move and ordered their arrest because of their viewpoint a n d substantive message. The Plaintiffs rely upon Sergeant Albert's deposition te s tim o n y, in which he acknowledged that he observed the Plaintiffs to be "well b e h a v e d " and "cooperative." Pl. Exh. A, Albert Dep., at 54 and 88-89. With respect to the Plaintiffs' "obstruction", Sergeant Albert testified as follows: Q : So when you say blocking them, there was room to go around [the P la in tiffs ]? A: Yes. Q : It's just that the marathon people didn't want them standing there? A: Correct. Q : But if people could go around them, how are they blocking? A: They were partially blocking. Q : So one individual standing there would be partially blocking? A: Yes. Q : If a newspaper reporter taking photographs was standing on those s te p s , they'd be blocking? . . . A: - partially blocking. Q : Could they be arrested? A: No. Pl. Exh. A, Albert Dep., at 60-61. 6
Since their arrest on April 23, 2006, both Plaintiffs have attended animal r ig h ts protests. However, the Plaintiffs claim that, because of their arrests, they c u r ta ile d and ultimately caused their protests of the Red Nose Run for fear of s u b s e q u e n t arrest and because the Defendants' actions made their expressive c o n d u c t at these events difficult or impossible. Pl. Loc. R. 56(a)(2) Statement ¶ 7. II. Standard of Review S u m m a r y judgment "should be rendered if the pleadings, the discovery and d is c lo s u r e materials on file, and any affidavits show that there is no genuine issue a s to any material fact and that the movant is entitled to judgment as a matter of la w ." Fed. R. Civ. P. 56(c). The Court "construe[s] the evidence in the light most fa v o r a b le to the non-moving party and . . . draw[s] all reasonable inferences in its fa v o r ." Huminski v. Corsones, 396 F.3d 53, 69-70 (2d Cir. 2004) (internal citations o m itte d ). "[I]f there is any evidence in the record that could reasonably support a ju r y's verdict for the non-moving party, summary judgment must be denied." Am. H o m e Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315 (2d C ir . 2006) (internal citations omitted). "The moving party bears the burden of s h o w in g that he or she is entitled to summary judgment." Huminski, 396 F.3d at 6 9 . "[T]he burden on the moving party may be discharged by `showing'--that is p o in tin g out to the district court--that there is an absence of evidence to support th e nonmoving party's case." PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2 d Cir. 2002) (internal citations omitted). "If the party moving for summary ju d g m e n t demonstrates the absence of any genuine issue as to all material facts, th e nonmoving party must, to defeat summary judgment, come forward with 7
evidence that would be sufficient to support a jury verdict in its favor." Burt Rigid B o x , Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002). III. Discussion A. First Amendment T h e Plaintiffs allege that the Defendants deprived them of their First Am e n d m e n t rights in violation of 42 U.S.C. § 1983 by threatening to arrest and a r r e s tin g them based on their exercise of free speech and assembly. The D e fe n d a n ts ' main argument in support of their motion for summary judgment as to th e s e claims is that the Riverfront Plaza was not a public forum, and therefore S e r g e a n t Albert's arrest of the Plaintiffs was justified. " U n d e r the prevailing constitutional framework, speech restrictions im p o s e d by the government on property that it owns are analyzed under a `forum b a s e d ' approach." Hotel Employees & Restaurant Union v. City of New York Dept. o f Parks and Recreation, 311 F.3d 534, 544 (2d Cir. 2002). "As a general matter, th e government is permitted to exercise control over the public's use of g o ve r n m e n t-o w n e d property for expressive purposes, and the degree of control p e r m itte d depends upon the nature of the property and the speech restrictions im p o s e d thereon." Id. The first category of government-owned property is the "traditional" public fo r u m , which is defined as a forum that has "traditionally been available for public e x p r e s s io n " and has as "a principal purpose . . . the free exchange of ideas." Id. (in te r n a l citations omitted). Examples of public fora are streets, sidewalks, and p a r k s . Id. Content-based restrictions on speech in such fora are subject to "strict 8
scrutiny," meaning that they "must serve a compelling government interest and be n a r r o w ly tailored to achieve that interest." Id. at 545. T h e second category of government-owned property is the "designated" p u b lic forum, which is "a non-public forum that the government has opened for all typ e s of expressive activity." Id. Restrictions on speech in designated public fora a r e constitutional only if they are "content-neutral time, place, and manner r e s tr ic tio n s that are (1) necessary to serve a compelling state interest and (2) n a r r o w ly drawn to achieve that interest." Id. (internal quotation marks omitted). The "limited" public forum is a subset of the designated public forum which e x is ts "where the government opens a non-public forum but limits the expressive a c tiv ity to certain kinds of speakers or to the discussion of certain subjects." Id. "In limited public fora, strict scrutiny is accorded only to restrictions on speech th a t fall within the designated category for which the forum has been opened." Id. "Thus, in a limited public forum, government is free to impose a blanket exclusion o n certain types of speech, but once it allows expressive activities of a certain g e n r e , it may not selectively deny access for other activities of that genre." Id. at 5 4 5 -4 6 . If expressive activity does not fall within the limited category for which the fo r u m has been opened, "restrictions need only be viewpoint neutral and r e a s o n a b le ." Id. at 546. The third category of government-owned property consists of "property that th e government has not opened for expressive activity by members of the public." Id. "The government may restrict speech in non-public fora subject only to the r e q u ir e m e n ts of reasonableness and viewpoint neutrality." Id. Examples of non9
public fora are airport terminals, military bases and restricted access military s to r e s , jailhouse grounds, and the Meadowland Sports Complex. Id. H e r e , the Defendants argue that Riverfront Plaza is a non-public forum b e c a u s e it is owned by the State of Connecticut, leased by the State to the City of H a r tfo r d , and in turn subleased by the City to Riverfront Recapture, Inc., a private c o r p o r a tio n . Pursuant to the terms of the lease agreement, Riverfront Recapture r e c e iv e s revenue from events held on the Plaza and provides for the maintenance o f the facility, and also provides its own park ranger service for the Plaza. The C ity of Hartford provides limited utility and structural services for the Plaza, is not r e s p o n s ib le for scheduling and organizing events at the Plaza, and provides only c u s to m a r y public safety services ordinarily provided to the public. To establish these facts pertaining to the lease agreement, the Defendants r e ly solely upon the affidavit of David B. Panagore, Director of the Developmental S e r v ic e s Department for the City of Hartford. See Def. Exh. 7. However, the D e fe n d a n ts have failed to provide a copy of the lease agreement itself. Thus, they h a v e violated Fed. R. Civ. P. 56(e), which provides "[i]f a paper or part of a paper is r e fe r r e d to in an affidavit, a sworn or certified copy must be attached to or served w ith the affidavit." In addition, the Plaintiffs have adduced evidence contradicting th e Defendants' claim that the Plaza is a non-public forum. Specifically, they rely u p o n the deposition testimony of Detective Wiebusch, who is the Hartford Police D e p a r tm e n t's Litigation Coordinator and the City's chosen representative for p u r p o s e s of this litigation. Detective Wiebusch expressly referred to sections of th e Hartford Municipal Code addressing Hartford public parks when describing the 10
legal status of the Plaza. See Pl. Exh. C, Wiebusch Dep., at 42-28 and 53-57. She fu r th e r testified as follows: Q : All right. So this area that we're talking about, where the defendants [s ic ] were arrested, that's a City of Hartford park? A: I guess there's a little confusion as to what it is, but it's under my u n d e r s ta n d in g that it's run and maintained and that there's park rangers at River F r o n t Recapture or Riverfront Plaza, which I believe is the location of the incident. And the exact details of who owns the property, I know that it's my u n d e r s ta n d in g that it is leased at some point to from one agency to another. The e x a c t information I do not have. Q : Is it a park? A: I would consider it a park. Q : Okay. So a park like Keeney Park, which is mentioned specifically in th is section [of the Municipal Code]? A: Yeah. Because it's an area where people can assemble, it's enjoyable, th e r e 's areas for them to walk. They can walk down from it, they can walk down to C h a r te r Oak Landing or Riverside Park, which is I mean that whole front section th e r e and it's maintained by park rangers. It's my understanding it's my in te r p r e ta tio n that it is a park. Q: So if these demonstrators had been in Keeney Park on that day a p p r o a c h in g pedestrians, asking them not to support the circus, and one of those p e d e s tr ia n s was annoyed, this section you cited would apply? . . . A: Yes. Pl. Exh. C, Wiebusch Dep., at 44-46. In light of the Defendants' failure to provide th e lease agreement referred to in Mr. Panagore's affidavit along with Detective W ie b u s c h 's testimony suggesting that the Plaza is a "park," the Court is unable to c o n c lu d e as a matter of law that the Plaza is a public forum. Moreover, assuming arguendo that the Defendants were able to establish th a t the Plaza is a public forum, they would still not be entitled to summary ju d g m e n t on the Plaintiffs' First Amendment claims. As noted above, even in nonp u b lic fora, government restrictions on expressive activities are subject to "the r e q u ir e m e n ts of reasonableness and viewpoint neutrality." Hotel Employees, 311 F .3 d at 546. Here, the Plaintiffs have adduced facts which may support a 11
reasonable jury's conclusion that Sergeant Albert arrested the Plaintiffs because o f their viewpoint, and not because of their conduct. Ms. Greaser admitted during h e r deposition that the Plaintiffs were "obstructing" the race in the sense that the P la in tiffs ' message was "obstructing the positive feeling of the race." Pl. Exh. C, G r e a s e r Dep., at 55. She further conceded that the "meaning of the words" on the P la in tiffs ' banner constituted "obstruction." Id. at 55-56. The only physical o b s tr u c tio n that the Plaintiffs engaged in was blocking approximately five feet of a th ir ty-fo o t step. Id. at 61. Sergeant Albert spoke to Ms. Greaser when he arrived at th e scene, and he relied upon her description of the protestors' activities in o r d e r in g them to move. Furthermore, Sergeant Albert himself admitted during his d e p o s itio n that event attendees had room to go around the Plaintiffs, and that the p e o p le running the marathon did not want them there. See Pl. Exh. A, Albert Dep., a t 60-61. The deposition testimony of Ms. Greaser and Sergeant Albert suffice to c r e a te a genuine issue of material fact as to whether Sergeant Albert's order in s tr u c tin g the Plaintiffs to move and their subsequent arrest was based on their v ie w p o in t rather than their conduct. The Defendants argue in the alternative that, even if the Court determines th a t the Plaza is a limited public forum or traditional public forum, they would still b e entitled to summary judgment because Sergeant Albert's conduct in arresting th e Plaintiffs was content-neutral and narrowly tailored to serve a significant g o ve r n m e n ta l interest. The Defendants identify "crowd control" as the g o ve r n m e n ta l interest that they sought to serve by ordering the Plaintiffs to move a n d subsequently arresting them when they failed to comply. See Heffron v. Int'l 12
Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 653-54 (1981) (recognizing the g o ve r n m e n t's interest in the orderly movement and control of persons at a fa ir g r o u n d as a substantial government objective justifying content-neutral r e s tr ic tio n s on expressive activities). In support of this argument, the Defendants r e ly upon the Third Circuit's decision in Startzell v. City of Philadelphia, 533 F.3d 1 8 3 (2008). However, Startzell is easily distinguishable from the present case. In Startzell, a group of protestors at a gay pride event were arrested after th e y refused a request by police officers to move to another location. 533 F.3d at 1 9 1 . The district court rejected the protestors' First Amendment claim against the C ity of Philadelphia, holding that the City did not prohibit their speech based on its c o n te n t, but rather imposed reasonable time, place, or manner restrictions that w e r e content neutral, narrowly tailored, and allowed for alternative channels of c o m m u n ic a tio n . Id. at 191. On appeal, the Third Circuit affirmed the district c o u r t's grant of summary judgment in favor of the City. In reaching its decision, th e Third Circuit relied upon facts showing that the protestors used bullhorns and m ic r o p h o n e s in an attempt to drown out event speakers, congregated in the m id d le of the walkway leading to the stage, interfered with the event's activities by e x p r e s s in g their message with loud bullhorns right next to the main stage where m u s ic a l performances were held, directly confronted a transgendered individual, a n d blocked access to the vendors who had applied for booths at the event. Id. at 1 9 9 . The Third Circuit recognized that "[t]he right of free speech does not e n c o m p a s s the right to cause disruption, and that is particularly true when those c la im in g protection of the First Amendment cause actual disruption of an event 13
covered by a permit." Id. at 198. The Third Circuit found that the police action in in s tr u c tin g them to move and arresting them was based upon the protestors' c o n d u c t, rather than the content of the message. Id. N o ta b ly, the Startzell court expressly distinguished an earlier decision by th e Sixth Circuit in Parks v. City of Columbus, 395 F.3d 643 (6th Cir. 2005). In P a r k s , a demonstrator was removed from a nonexclusive Arts Festival which had a permit. Id. at 646. The Sixth Circuit found that the City's actions were based on th e content of the demonstrator's speech, because "Parks was acting in a p e a c e fu l manner and the only difference between him and the other patrons was th a t he wore a sign communicating a religious message and distributed religious le a fle ts ." Id. at 653-54. There was no evidence that Parks was interfering with or d is r u p tin g any part of the Arts Festival, but instead he was asked to move simply b e c a u s e the event sponsor did not want him there. Id. at 654. T h e facts before the Court on summary judgment suggest that this case is m o r e analogous to Parks than to Startzell. The Defendants have failed to produce e v id e n c e demonstrating that the Plaintiffs or other protestors disrupted or in te r fe r e d with the Red Nose Run. Instead, the facts show that they stood on a s te p in a location by which the children were running holding banners critical of th e circus. While Ms. Greaser claimed that they were "obstructing" event a tte n d e e s , her deposition testimony suggests that by "obstruction" she meant that th e ir message was interfering with the ability of event attendees to enjoy th e m s e lv e s , and not that they were obstructing the event in a physical sense. As in Parks, it appears that the Plaintiffs and other protestors were asked to move 14
simply because Ms. Greaser did not want them there. At the very least, her te s tim o n y creates genuine issues of material fact that render the Plaintiffs' First Am e n d m e n t claims inappropriate for resolution on a motion for summary ju d g m e n t . The Defendants further argue that the Plaintiffs lack standing for their First Am e n d m e n t claims because their arrests did not "chill" their exercise of their First Am e n d m e n t rights. To prevail on their First Amendment claims, the Plaintiffs m u s t prove "(1) [they have] an interest protected by the First Amendment; (2) d e fe n d a n ts ' actions were motivated or substantially caused by [their] exercise of th a t right; and (3) defendants' actions effectively chilled the exercise of [their] First Am e n d m e n t right." Curley v. Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (citations o m itte d ). If the Plaintiffs fail to demonstrate "an actual, non-speculative chilling e ffe c t," there is no harm and therefore they lack standing. See Colombo v. O 'C o n n e ll, 310 F.3d 115, 117 (2d Cir. 2002). The Defendants base their argument on the fact that both Plaintiffs admitted d u r in g their deposition that they have continued to attend animal rights protests fo llo w in g their arrests. However, the Plaintiffs contend that they curtailed and th e n completely ceased their demonstrations at the Red Nose Run events as a r e s u lt of their fear of subsequent arrest caused by the Defendants' conduct. In a d d itio n , it is undisputed that the Plaintiffs were unable to continue their d e m o n s tr a tio n on April 23, 2006 as a result of their arrests. Whether or not these fa c ts are sufficient to demonstrate that the Plaintiffs were "effectively chilled" fr o m exercising their First Amendment rights is a question of material fact to be 15
decided by the jury at trial. B. False Arrest, False Imprisonment, and Malicious Prosecution T h e Defendants argue that the Plaintiffs cannot recover on their claims for fa ls e arrest, false imprisonment, and malicious prosecution under 42 U.S.C. § 1983 o r Connecticut law because Sergeant Albert had probable cause to arrest them for th e charged offense of obstructing free passage as well as the uncharged o ffe n s e s of disorderly conduct and interfering with a police officer. As the D e fe n d a n ts ' correctly note, a plaintiff cannot recover on a 42 U.S.C. § 1983 claim b a s e d upon false arrest, false imprisonment, or malicious prosecution if the a r r e s tin g officer had probable cause for the arrest. See Finigan v. Marshall, 574 F .3 d 57, 61 (2d Cir. 57). Likewise, to prevail on their state law claims for false a r r e s t, false imprisonment, malicious prosecution, and violation of the C o n n e c tic u t Constitution, the Plaintiffs must in each instance establish an a b s e n c e of probable cause. See Shattuck v. Town of Stratford, 233 F. Supp. 2d 3 0 1 , 306-07 (D. Conn. 2002). " In determining whether there was probable cause, [a court's] inquiry is an o b je c tiv e one that focuses on the facts available to the arresting officer at the time o f the arrest." Finigan, 574 F.3d at 61-61. "Probable cause exists when, based on th e totality of the circumstances, the officer has `knowledge of, or reasonably tr u s tw o r th y information as to, facts and circumstances that are sufficient to w a r r a n t a person of reasonable caution in the belief that an offense has been or is b e in g committed by the person to be arrested.'" Id. at 62 (quoting Zellner v. S u m m e r lin , 494 F.3d 344, 368 (2d Cir. 2007). "Although probable cause generally 16
raises a fact-specific determination, `[t]he question of whether or not probable c a u s e existed may be determinable as a matter of law if there is no dispute as to th e pertinent events and the knowledge of the officers.'" Joyner v. Morales, No. 04 C iv . 569, 2005 WL 883327, at *2 (S.D.N.Y. Apr. 15, 2005) (quoting Weyant v. Okst, 1 0 1 F.3d 845, 852 (2d Cir. 1996)). Based upon the facts and circumstances of this case, as further detailed b e lo w , the Court concludes that there are genuine issues of material fact r e g a r d in g the existence of probable cause, and therefore that summary judgment w o u ld be inappropriate on this basis. 1. Obstructing Free Passage T h e law pertaining to Obstructing Free Passage is governed by Conn. Gen. S ta t. § 53a-182a, which provides: (a ) Unless a person is engaged in any activity which is expressive of r ig h ts guaranteed under the constitution of the United States or the c o n s titu tio n of this state, a person is guilty of obstructing free passage w h e n , after being w a r n e d by a law enforcement officer not to do so, he (1 ) stands, sits or lies in or upon any public street, curb, crosswalk, w a lk w a y area, mall or the portion of private property utilized for public u s e , so as to obstruct unreasonably the free passage of pedestrians th e r e o n , or (2) obstructs unreasonably or prevents free access to the e n tr a n c e to any building open to the public. Conn. Gen. Stat. §53a-182a (2009). Thus, by its express terms, this statute has no a p p lic a tio n to individuals "engaged in any activity which is expressive of rights g u a r a n te e d under the constitution of the United States." Here, the Plaintiffs have a s s e r te d that they were exercising their First Amendment rights at the time of their a r r e s t. The Court has already determined that there are genuine issues of material fa c t with respect to whether the Plaza was a public forum and whether the 17
Plaintiffs have demonstrated a violation of their First Amendment rights. Moreover, Ms. Greaser admitted during her deposition that the Plaintiffs were " o b s tr u c tin g " in the sense that the Plaintiffs' message was "obstructing the p o s itive feeling of the race." Sergeant Albert spoke to Ms. Greaser when he a r r iv e d at the scene and relied upon Ms. Greaser's description of the protestors' a c tiv itie s in ordering them to move. Furthermore, Sergeant Albert himself c o n c e d e d at his deposition that event attendees could easily go around the P la in tiffs , which tends to confirm their allegation that they were not physically o b s tr u c tin g the event. This testimony creates questions of material fact as to w h e th e r the Plaintiffs were arrested for expressing their First Amendment rights. If the jury finds that the Plaintiffs were engaged in activity protected by the First Am e n d m e n t, no reasonable officer could have believed that there was probable c a u s e to arrest them for violation of Conn. Gen. Stat. § 53a-182a. 2 . Disorderly Conduct T h e law pertaining to Disorderly Conduct is governed by Conn. Gen. Stat. § 5 3 a -1 8 2 , which states: (a ) A person is guilty of disorderly conduct when, with intent to cause in c o n ve n ie n c e , annoyance or alarm, or recklessly creating a risk thereof, s u c h person: (1) Engages in fighting or in violent, tumultuous or th r e a te n in g behavior; or (2) by offensive or disorderly conduct, annoys o r interferes with another person; or (3) makes unreasonable noise; or (4 ) without lawful authority, disturbs any lawful assembly or meeting of p e r s o n s ; or (5) obstructs vehicular or pedestrian traffic; or (6) c o n g r e g a te s with other persons in a public place and refuses to comply w ith a reasonable official request or order to disperse... C o n n . Gen. Stat. § 53a-182 (2009). The Defendants argue that the protestors were a c tin g with intent to cause inconvenience, annoyance or alarm, that they were 18
disturbing a lawful assembly and obstructing pedestrian traffic, and that they r e fu s e d to comply with a reasonable official request to disperse. However, the C o u r t finds that there are questions of material fact as to whether the alleged in te n t to cause inconvenience, annoyance or alarm was the predominant intent of th e Plaintiffs. In addition, the Court again emphasizes that, in this case, a r e a s o n a b le jury could find that by arresting the Plaintiffs in their peaceable protest o f the circus, the arresting officer was interfering with the First Amendment rights o f the protestors and, thus, was not acting reasonably. In State v. Indrisano, the Connecticut Supreme Court found that " p r e d o m in a n c e can be determined either (1) from the fact that no bona fide intent to exercise a constitutional right appears to have existed or (2) from the fact that th e interest to be advanced by the particular exercise of a constitutional right is in s ig n ific a n t in comparison with the inconvenience, annoyance or alarm caused b y the exercise." 640 A.2d 986, 993 (Conn. 1994). As the Indrisano court r e c o g n iz e d , Conn. Gen. Stat. § 53a-182 cannot be applied to individuals if they w e r e lawfully exercising their First Amendment rights. See id. at 807 ("As r e a s o n a b ly construed, the statute does not prohibit the lawful exercise of any c o n s titu tio n a l right.") (quoting Colten v. Kentucky, 407 U.S. 104, 110 (1972)). Again, if the jury finds that the Plaintiffs were lawfully exercising their First Am e n d m e n t rights at the time of their arrest, no reasonable officer could have b e lie v e d that there was probable cause to arrest them for violation of Conn. Gen. S ta t. § 53a-182.
3. Interfering with an Officer F in a lly, the law pertaining to Interfering with an Officer is governed by C o n n . Gen. Stat. § 53a-167a, which provides: (a ) A person is guilty of interfering with an officer when such person o b s tr u c ts , resists, hinders or endangers any peace officer...in the p e r fo r m a n c e of such peace officer's...duties. C o n n . Gen. Stat § 53a-167a (2009). As discussed previously, there are questions o f material fact with respect to whether the Plaintiffs were lawfully engaged in e x p r e s s io n of their First Amendment rights at the time of their arrest. If the P la in tiffs were lawfully exercising their First Amendment rights, they could not be d e p r iv e d of those rights simply because they refused to obey an order to disperse. See State v. Anonymous, 33 Conn. Supp. 93, 98 (Conn. Com. Pl. 1976) (holding that in d ivid u a ls "engaged in the lawful expression of their constitutional rights may n o t be deprived of those rights because they refused to obey an order to d is p e r s e " ); State v. Anonymous, 34 Conn. Supp. 531, 534 (Conn. Sup. Ct. 1977) (" [A]n officer cannot be found to have been in the performance of his duties u n le s s he was acting within the law at the time of the alleged interference"). Based upon the facts presented, the Court is unable to conclude as a matter of law th a t Sergeant Albert had probable cause to order the arrest of the Plaintiffs for v io la tio n of Conn. Gen. Stat. § 53a-167a. In fact, Sergeant Albert unequivocally te s tifie d during his deposition that the Plaintiffs did not interfere with an officer: Q : At the time you directed the arrest of Mr. Oatis and Ms. Zalaski, did you b e lie v e there was probable cause that they had committed a crime? A: Yes. Q : What crimes or crime did you believe they had committed? 20
A: Possibly trespass, possibly obstructing free passage, possibly d is tu r b in g the peace, breach of peace, disorderly conduct. Q : Any others? A: Not that I can recall right now. Interfering, but they didn't interfere. Everyone was cooperative Q : Okay. Hold on. Possibly interfering, but they didn't interfere? Did you A: Yeah. I mean if we had to struggle with them or something. Q : Did you struggle with them? A: No. Pl. Exh. A, Albert Dep., at 54 (emphasis added). Thus, Sergeant Albert's own d e p o s itio n testimony contradicts the Defendants' assertion that probable cause e x is te d to arrest the Plaintiffs on the charge of Interfering with an Officer. C. Qualified Immunity T h e Defendants further argue that Sergeant Albert is entitled to qualified im m u n ity with respect to the Plaintiffs' 42 U.S.C. § 1983 claims for damages a g a in s t him. Qualified immunity protects a "government official acting in an o ffic ia l capacity from suit for damages under § 1983 unless the official violated c le a r ly established rights of which an objectively reasonable official would have k n o w n ." Blouin ex rel. Estate of Pouliot v. Spitzer, 356 F.3d 348, 358 (2d Cir. 2 0 0 4 ); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In Saucier v. Katz, 5 3 3 U.S. 194 (2001), the Supreme Court mandated a two-step sequence for r e s o lv in g qualified immunity claims. First, a court must decide whether the facts th a t a plaintiff has shown make out a violation of a constitutional right. Id. at 201. Second, if the plaintiff satisfies the first step, the court must then decide whether th e right at issue was "clearly established" at the time of the defendant's alleged m is c o n d u c t. Id. Subsequently, in Pearson v. Callahan, 129 S.Ct. 808 (2009), the Supreme 21
Court ruled that the Saucier approach for determining whether a government o ffic ia l is entitled to qualified immunity should no longer be considered m a n d a to r y. Following Pearson, lower court judges are permitted to exercise their d is c r e tio n in determining which of the two prongs of the qualified immunity a n a lys is should be addressed first in light of the circumstances of the particular c a s e at hand. Id. at 817. The Pearson Court observed, however, that the Saucier a p p r o a c h is often beneficial, such as in cases where it "may be difficult to decide w h e th e r a right is clearly established without deciding precisely what the c o n s titu tio n a l right happens to be." Id. at 818. As the Defendants correctly state, in determining whether the Plaintiffs' F ir s t Amendment rights were clearly established at the time of the events in q u e s tio n , the Court must consider the nature of the Plaza as a forum and assess a n y limitations placed on the Plaintiffs' speech in light of the requisite standard for th a t forum. See Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 7 8 8 , 797 (1985). The Defendants argue that Sergeant Albert is entitled to qualified im m u n ity because it is "far from clear what First Amendment rights plaintiffs were e n title d to on the plaza," and therefore, it was objectively reasonable for the o ffic e r s to believe that probable cause existed to arrest the Plaintiffs when they fa ile d to comply with Sergeant Albert's request to move. As the Second Circuit h a s explained, "[i]f facts supporting probable cause to arrest are ultimately found n o t to have existed, an arresting officer will nonetheless be entitled to immunity fr o m suit based on `arguable probable cause,' which requires that he or she show th a t it was objectively reasonable to believe that probable cause existed or that 22
`officers of reasonable competence could disagree on whether the probable cause te s t was met.'" Finigan, 574 F.3d at 61 (quoting Escalera v. Lunn, 361 F.3d 737, 7 4 3 (2d Cir. 2004)). As noted above, the Court has determined that there are genuine issues of m a te r ia l fact with respect to the nature of the Plaza as a forum. Specifically, the n a tu r e of the forum is unclear in light of the Defendants' failure to provide the le a s e agreement between the City and Riverfront Recapture, and further based u p o n Detective Wiebusch's testimony suggesting that the Plaza is a "park." Where, as here, facts material to the qualified immunity remain in dispute, s u m m a r y judgment is inappropriate. See Hemphill v. Schott, 141 F.3d 412, 418 (2d C ir . 1998) ("summary judgment based either on the merits or on qualified im m u n ity requires that no dispute about material factual issues remain"); Thomas v . Roach, 165 F.3d 137, 143 (2d Cir. 1999) ("Summary judgment on qualified im m u n ity is not appropriate when there are facts in dispute that are material to a d e te r m in a tio n of reasonableness."). Moreover, even assuming that the Plaza is a nonpublic forum, Sergeant Alb e r t would still not be entitled to qualified immunity based upon the record b e fo r e the Court on summary judgment. It is clearly established that individuals h a v e a First Amendment right to engage in protest activities. As the Second C ir c u it has explained: T h e Supreme Court has declared that the First Amendment protects p o litic a l demonstrations and protests activities at the heart of what the B ill of Rights was designed to safeguard. See Boos v. Barry, 485 U.S. 3 1 2 , 318, 108 S.Ct. 1157, 99 L.Ed.2d 33 (1988) (calling organized political p r o te s t "classically political speech" which "operates at the core of the 23
First Amendment"). Indeed, the Court has repeatedly held that police m a y not interfere with orderly, nonviolent protests merely because they d is a g r e e with the content of the speech or because they simply fear p o s s ib le disorder. J o n e s v. Parmley, 465 F.3d 46, 56 (2d Cir. 2006); see also De Jonge v. Oregon, 299 U .S . 353, 364 (1937) ("The right of peacable assembly is a right cognate to . . . free s p e e c h and . . . is equally fundamental."). While an individual's First Amendment r ig h ts are limited when the forum at issue is a nonpublic one, they are not entirely e x tin g u is h e d . To the contrary, the Second Circuit has held that, even in nonp u b lic fora, government restrictions on expressive activities are subject to "the r e q u ir e m e n ts of reasonableness and viewpoint neutrality." Hotel Employees, 311 F .3 d at 546; see also Huminski, 396 F.3d at 92-93 (concluding that trespass notices is s u e d to plaintiff constituted "an unreasonable restriction on [his] expressive a c tiv ity in a nonpublic forum," and noting that "[s]uch broad restrictions are g e n e r a lly frowned upon even in nonpublic forums"). Here, there is sufficient evidence in the record from which a jury may c o n c lu d e that no reasonable officer could have believed that there was probable c a u s e to arrest the Plaintiffs. If the jury accepts the Plaintiffs' version of the facts a n d determines that the Plaintiffs were merely engaged in peaceful protest and did n o t obstruct or interfere with the event in any way, and further that they were a s k e d to move solely because of their viewpoint, an objectively reasonable officer c o u ld not have believed that there was probable cause to arrest them. This is true e v e n if the Plaza is found to be a nonpublic forum, because such a restriction on th e Plaintiffs' expressive activities would be neither reasonable nor viewpoint 24
neutral. D. Municipal Liability T h e Defendants also argue that the City of Hartford is entitled to summary judgment because the Plaintiffs have failed to provide any facts to support m u n ic ip a l liability under the Supreme Court's decision in Monell v. Dep't of Social S e r v ic e s , 436 U.S. 658 (1978). Pursuant to Monell, "a local government may not be s u e d under § 1983 for an injury inflicted solely by its employees or agents. Id. at 6 9 4 . "Instead, it is when execution of a government's policy or custom, whether m a d e by its lawmakers or by those whose edicts or acts may fairly be said to r e p r e s e n t official policy, inflicts the injury that the government as an entity is liable u n d e r § 1983." Id. In order for the City to be held liable for the unconstitutional a c ts of its employees, the Plaintiffs must prove "that [their] constitutional rights w e r e violated, that the alleged actions by the employees were the result of an o ffic ia l policy, custom, or practice of the municipal defendant, and that the policy, c u s to m , or practice caused the alleged injuries." Albert v. City of Hartford, 529 F. S u p p . 2d 311, 329 (D. Conn. 2007) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1 9 8 9 )). The Plaintiffs may demonstrate a "policy, custom or practice" in one of four w a ys : "(1) a formal policy which is officially endorsed by the municipality; (2) a c tio n s taken or decisions made by government officials responsible for e s ta b lis h in g municipal policies which caused the alleged violation of the [P la in tiffs '] civil rights; (3) a practice so persistent and widespread that it c o n s titu te s a `custom or usage' and implies the constructive notice knowledge of 25
policy-making officials; or (4) a failure by official policy makers to properly train or s u p e r v is e subordinates to such an extent that it amounts to a deliberate in d iffe r e n c e to the rights of those with whom municipal employees will come into c o n ta c t." Albert, 529 F. Supp. 2d at 329 (internal citations omitted). The Plaintiffs first argue that summary judgment is inappropriate because th e actions to which they object were taken by an official responsible for e s ta b lis h in g municipal policy. In order for the City to be liable on this basis, the o ffic ia l must have "final policymaking authority." City of St. Louis v. Praprotnik, 4 8 5 U.S. 112, 113 (1988) (citing Pembauer v. Cincinnati, 475 U.S. 469, 483 (1986) (p lu r a lity opinion)). Whether a particular municipal official has "final policymaking a u th o r ity is a question of state law." Id. at 124. Here, the Defendants' answers to in te r r o g a to r y questions asking them to identify who had final decision-making a u th o r ity to act on behalf of the City of Hartford named only Sergeant Albert. See P l. Exh. D, ¶ 4; Pl. Exh. E, ¶ 4. Thus, the Plaintiffs argue, they do not have the b u r d e n at this stage of showing that Sergeant Albert had final decision-making a u th o r ity because the Defendants have made no factual assertions to contradict th e allegations made in their Complaint. However, the Supreme Court has made c le a r that the issue of whether a particular municipal official has final p o lic ym a k in g authority "is a question of state law." Praprotnik, 485 U. S. at 113. The Plaintiffs have not cited any state law granting final policymaking a u th o r ity to Sergeant Albert with respect to the actions in question. Instead, they a p p e a r to rely solely upon his discretionary authority to direct officers to make a r r e s ts . The Second Circuit has "explicitly rejected the view that mere exercise of 26
discretion was sufficient to establish municipal liability." Anthony v. City of New Y o r k , 339 F.3d 129, 139 (2d Cir. 2003). In Anthony, the Second Circuit held that the C ity was not liable for the actions of an NYPD sergeant in ordering his officers to s e iz e and hospitalize a non-violent disabled individual because he was not a final d e c is io n -m a k e r and therefore his order did not constitute an official municipal p o lic y. Id. at 139-140. Similarly, in the instant case, Sergeant Albert cannot be c o n s id e r e d to be a final decision-maker simply because he possessed the d is c r e tio n to direct Officer Hart to arrest the Plaintiffs. The Plaintiffs further argue that summary judgment is inappropriate b e c a u s e the Defendants admitted during the course of discovery that the City p r o v id e d no training to its officers regarding the rights of individuals engaged in e x p r e s s iv e activities, and that Officer Hart's arrest of the Plaintiffs was consistent w ith City policy and procedure. In making this argument, the Defendants rely u p o n the deposition testimony of Detective Wiebusch, who is the Hartford Police D e p a r tm e n t's Litigation Coordinator and the City's chosen representative for p u r p o s e s of this litigation. Detective Wiebusch testified that Officer Hart's arrest o f the Plaintiffs was "consistent with Hartford policy and procedures." Pl. Exh. C a t 59-60. Detective Wiebusch further testified that she would not have charged the P la in tiffs with Obstructing Free Passage because, in her view, it appeared that th e y were engaging in conduct protected by the Constitution. Id. at 65-66. Officer H a r t also testified that his arrest of the Plaintiffs and his view of their First Am e n d m e n t rights was "based on my training and experiences as a police o ffic e r ." Pl. Exh. H at 46. 27
The deposition testimony of Detective Wiebusch and Officer Hart creates q u e s tio n s of material fact with respect to whether the Plaintiffs were arrested p u r s u a n t to official City policy. Detective Wiebusch's statement that she would n o t have charged the Plaintiffs with Obstructing Free Passage because it a p p e a r e d that they were engaging in constitutionally protected conduct may be v ie w e d as a concession that they were inappropriately arrested on this charge. Combined with her and Officer Hart's testimony that the arrest was consistent w ith City policy and procedure, this statement raises a question as to whether the C ity had a policy of arresting individuals for exercising their constitutional rights. Furthermore, because Officer Hart testified that his arrest of the Plaintiffs and his v ie w of their constitutional rights was consistent with his training, there is a q u e s tio n of material fact as to whether the City failed to properly train its officers a n d , if so, whether that failure rose to the level of deliberate indifference to the c o n s titu tio n a l rights of the public. See Russo v. City of Bridgeport, 479 F.3d 196, 2 1 2 (2d Cir. 2007) ("[T]he City has admitted . . . that `all individual defendants . . . a c te d toward the Plaintiff in accordance with custom, policy and practice.' We u n d e r s ta n d this to constitute an admission that, if [the defendant police officers] a r e ultimately held to have violated [the plaintiff's] constitutional rights, then m u n ic ip a l liability against the City will be appropriate as well."). Accordingly, s u m m a r y judgment is denied as to the Plaintiffs' claims against the City. E. Intentional and Reckless Infliction of Emotional Distress F in a lly, in the fifth and sixth causes of action of their Complaint, the P la in tiffs have alleged that the Defendants "intended to inflict severe emotional 28
distress, or . . . knew or should have known that their actions would inflict severe e m o tio n a l distress," and "recklessly inflicted severe emotional distress upon the P la in tiff[s ]." Compl. at 10-11. The Defendants move for summary judgment on th e s e claims, arguing that the conduct of the arresting officers was not "extreme a n d outrageous." As a preliminary matter, the Court notes that Connecticut courts have not c o n c lu s ive ly determined whether a separate cause of action exists under C o n n e c tic u t law for reckless infliction of emotional distress. See Montanaro v. B a r o n , No. CV065006991, 2008 WL 1798528, *3-4 (Conn. Super. Ct. Mar. 28, 2008). However, as discussed in Montanaro, while Connecticut appellate courts have not d ir e c tly addressed the issue, several decisions implicitly suggest that there is no d is tin c t claim for reckless infliction of emotional distress. See Carrol v. Allstate In s . Co., 262 Conn. 433, 451-52, 815 A.2d 119 (2003); Petitte v. DSL.net, Inc., 102 C o n n . App. 363, 374 n. 2, 925 A.2d 457 (2007); Olson v. Bristol, 273 Conn. 914, 870 A.2 d 1083 (2005); Benton v. Simpson, 78 Conn. App. 746, 756-57, 829 A.2d 68 (2 0 0 3 ). Based upon these decisions, the Montanaro court concluded that there is n o distinct cause of action for reckless infliction of emotional distress, and that s u c h a claim is encompassed by a claim for intentional infliction of emotional d is tr e s s . 2008 WL 1798528, at *5. This Court agrees with the Montanaro court's a n a lys is of Connecticut law. Accordingly, the Plaintiffs' claim for reckless in flic tio n of emotional distress is dismissed, as the Plaintiffs have also asserted a c la im for intentional infliction of emotional distress, which encompasses their r e c k le s s n e s s claim. 29
The Court turns now to the Plaintiffs' claim for intentional infliction of e m o tio n a l distress. To prevail on such a claim, a Plaintiff must prove: (1) that the actor intended to inflict emotional distress, or knew or s h o u l d have known that emotional distress was a likely result of his c o n d u c t; (2) that the conduct w a s extreme and outrageous; (3) that the d e fe n d a n t's conduct was the cause of the plaintiff's distress; and (4) th a t the emotional distress sustained by the Plaintiff was severe. Appleton v. Bd. of Educ., 757 A.2d 1059 (Conn. 2000) (citing Petyan v. Ellis, 200 C o n n . 243, 253, 510 A.2d 1337 (1986)); see also Benton v. Simpson, 78 Conn. App. 7 4 6 , 753, 829 A.2d 68 (2003); Massey v. Town of Windsor, 289 F. Supp. 2d 160, 165 (D . Conn. 2003); Kilduff v. Consential Inc., 289 F. Supp. 2d 12, 21 (D. Conn. 2003). Further, the Plaintiff must show that the Defendant's conduct "exceeds all bounds u s u a lly tolerated by decent society" and is "so outrageous in character, and so e x tr e m e in degree, as to go beyond all possible bounds of decency, and to be r e g a r d e d as atrocious and utterly intolerable in a civilized community." Appleton, 2 5 4 Conn. at 211, 757 A.2d 1059. The actions of the Defendants "cannot be merely r u d e , tactless or insulting." Garris v. Dep't of Corr., 170 F.Supp.2d 182, 189 (D. C o n n . 2001). As a matter of law absent other factors that may constitute " e x tr e m e and outrageous" conduct an arrest will not be considered intentional in flic tio n of emotional distress if the arresting officer has probable cause to make th e arrest. See Winter v. Northrop, No. 3:06cv216, 2008 WL 410428, at *6 (D. Conn. F e b . 12, 2008); Blalock v. Bender, No. 3:04CV1519, 2006 WL 1582217, at *6-7 (D. C o n n . June 1, 2006). The Plaintiffs have made no allegation, nor are there genuine issues of m a te r ia l fact, that the Defendants intended, knew, or should have known that a 30
routine arrest would lead to emotional distress on the part of the Plaintiff, or that th e Defendants' conduct was extreme and outrageous. They have failed to allege o r identify any behavior whatsoever on the part of the Defendants that was "so o u tr a g e o u s in character, and so extreme in degree, as to go beyond all possible b o u n d s of decency, and to be regarded as atrocious and utterly intolerable in a c iv iliz e d community." Appleton, 254 Conn. at 211. In addition, the Plaintiffs have fa ile d to produce any evidence that they sustained "severe" emotional distress as a result of their arrests. Therefore, they cannot satisfy the standard for intentional in flic tio n of emotional distress, and summary judgment is granted in favor of the D e fe n d a n ts on this claim. III. Conclusion B a s e d upon the above reasoning, the Defendants' motion for summary ju d g m e n t is GRANTED IN PART and DENIED IN PART. The Plaintiffs' claims for in te n tio n a l and reckless infliction of emotional distress are dismissed. The P la in tiffs ' remaining claims shall go forward. A separate order will be issued s c h e d u lin g this case for trial.
IT IS SO ORDERED.
/s/ Vanessa L. Bryant U n ite d States District Judge
D a te d at Hartford, Connecticut: March 31, 2010.
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