Fair v. Esserman
ORDER denying in substantial part 51 Motion for Summary Judgment. Esserman's motion for summary judgment is denied in substantial part. His motion for summary judgment on Fair's claims of direct and retaliatory violations of her First Amendment rights is denied. Fair's claim for injunctive relief against Esserman in his personal capacity is dismissed and the claim for such relief against his official capacity will proceed, but the current Chief of Police should be subst ituted for Esserman pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Within one week of this Order, the parties shall jointly contact the court to schedule a calendar call in order to set trial dates in this matter.Signed by Judge Stefan R. Underhill on 7/12/2017. (Buttrick, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
No. 3:15-cv-681 (SRU)
RULING AND ORDER
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
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
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
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
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.
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
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 15year–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 raciallycharged 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 to Reverend
Kimber, but Rev. Kimber contacted Esserman directly and was then admitted to the meeting as a
Fair has not attempted to attend any further meetings, but Esserman stated in his
deposition that there is no ongoing bar against Fair’s attendance.
Fair alleges that Esserman’s conduct constituted both a direct violation of her First
Amendment rights and impermissible retaliation for her exercise of those rights, for which she
seeks both damages and injunctive relief. 2
The parties did not seek to agree on the exact content of Esserman’s explanation as a “material fact” in their Local
Rule 56 statements, and although Esserman stated in his deposition that Fair’s daughter was filming that encounter,
that film is not part of the record for this motion. Esserman Dep. at 52.
Esserman argues that to the extent Fair is still seeking injunctive relief, that claim should be denied as moot
because Esserman is no longer employed as the Chief of Police. Def.’s Br. at 1 n.1. The complaint states that
Esserman was sued “in his individual and official capacities.” Compl. at ¶ 4. Accordingly, the claim for injunctive
relief against Esserman in his personal capacity is dismissed and the claim for such relief against Esserman in his
A. Direct First Amendment Violation Claim
The Supreme Court has articulated a three-step test to determine whether the
government’s limitation on speech violates a First Amendment right: first, the court must
determine whether the plaintiff’s speech is protected; second, the court “must identify the nature
of the forum, because the extent to which the Government may limit access depends on whether
the forum is public or nonpublic;” and finally, the court must “assess whether the justifications
for exclusion from the relevant forum satisfy the requisite standard.” Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985).
Esserman apparently concedes that Fair’s speech regarding racism in the Department was
protected. See Snyder v. Phelps, 562 U.S. 443, 452 (2011) (“[S]peech on public issues occupies
the highest rung of the hierarchy of First Amendment values, and is entitled to special
protection.”) (quotation marks and citation omitted); see also Dougherty v. Town of N.
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir. 2002) (“The right to complain to
public officials . . . [is] protected by the First Amendment.”). Accordingly, I first consider the
appropriate forum classifications for ComStat Meetings 1, 2, and 3, and whether the restrictions
on Fair’s speech in the latter two meetings—there does not appear to be an allegation that her
speech was restricted in any way in Meeting 1—were permissible under the relevant standards.
In the course of that discussion, I take up a separate theory of First Amendment violation not
squarely briefed by the parties—namely, whether a State actor can change the status of a forum
temporarily in order to exclude a speaker.
official capacity will proceed, but the current Chief of Police should be substituted in for Esserman pursuant to Rule
25(d) of the Federal Rules of Civil Procedure. See Correction Officers Benev. Ass’n v. Kralik, 2009 WL 856395, at
*5 (S.D.N.Y. Mar. 26, 2009).
1. Forum Classification
Proper classification of the forum for constitutional protection should be a fact-specific
inquiry that considers the traditional use of the forum; governmental intent, policy, and practice;
and the nature of the space and its compatibility with expressive activity. See Make The Road by
Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir. 2004) (citing Cornelius, 473 U.S. at 802, and
General Media Communs. v. Cohen, 131 F.3d 273, 278 (2d Cir. 1997) (corrected opinion)). As a
practical matter, however, courts and litigants generally focus on which of three major categories
recognized by the Supreme Court best describes the forum at hand—namely, whether it is (1) a
traditional public forum, such as streets and parks, which “have immemorially been held in trust
for the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions,” Perry Education
Association v. Perry Local Educators’ Association, 460 U.S. 37, 45 (1983) (quotation marks and
citation omitted); (2) a designated public forum, which is “‘a place not traditionally open to
assembly and debate’ ‘which the State has opened for used by the public as a place for
expressive activity,’” Make the Road, 378 F.3d at 143 (quoting Cornelius, 473 U.S. at 802, and
Perry, 460 U.S. at 45, respectively); or (3) a nonpublic forum, which is “public property not
traditionally open to public expression or intentionally designated by the government as a place
for such expression.” Id. The Second Circuit has also identified as a subset of the designated
public forum classification the limited public forum, in which “the government opens a nonpublic forum but limits the expressive activity to certain kinds of speakers or to the discussion of
certain subjects.” Id. (quotation marks and citations omitted). Each type of forum carries its own
standards by which to evaluate the constitutionality of limitations on expressive activity.
The parties agree that none of the ComStat meetings constituted a “traditional public
forum.” Instead, they debate whether the meetings should be classified as limited public forums
or nonpublic forums.
a. ComStat Meeting 1
In Make The Road by Walking, Inc. v. Turner, 378 F.3d 133, the Second Circuit provides
a helpful discussion of the distinction between limited public forums and nonpublic forums. See
id. at 143–46. The Court focused on whether permission to speak or the topics on which speech
is permitted were governed by general or selective access policies—for instance, a selective
access policy requiring a speaker to seek individualized permission in order to speak suggests the
forum is nonpublic. Id. at 144. The Court also considered the government’s justification for
imposing a particular kind of access policy—for instance, if a selective access policy is imposed
in order to further internal government objectives, such as facilitating communication among
government workers or minimizing disruption in a federal workplace, there is a still stronger
implication that the forum is nonpublic. Id. at 145 n.6. Finally, the Court considered the physical
characteristics of the forum, including its location in an area separated from “acknowledged
public areas.” Id. at 145 (quoting Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,
680 (1992) [hereinafter “Lee”]).
It seems clear that, viewing the record in the light most favorable to Fair, Meeting 1, and
prior ComStat meetings opened to the general public, should be classified as limited public
forums rather than nonpublic ones. The meetings were opened to the general public by the
admittedly deliberate choice of Esserman as chief of police. Some courts have found that
because the very physical presence of members of the public at a government meeting can
communicate an important message, even permitting the general public to attend silently may be
sufficient to create a limited public forum. See ACT-UP v. Walp, 755 F. Supp. 1281, 1288 (M.D.
Pa. 1991) (in the context of access to a state legislature’s gallery, observing that “the
communication in the between the chamber and gallery works two ways: the audience listens to
the political decisionmaking of the elected officials, and the elected officials receive the
message, by the very presence of citizens in the gallery, that they are being watched, that their
decisions are being scrutinized, and that they may not act with impunity outside the watchful
eyes of their constituents”); see also id. (“One need not speak to make a point.”) (collecting
cases). Moreover, within the limited topic of community policing, a reasonable jury could infer
from the record that the meetings also included a general invitation for comment from the
public—although Esserman asserted in his deposition that the meetings were “not really” open to
questions from public attendees, he also stated that “at the end of the meeting we’d go around the
room and say does anyone have anything left out?” Esserman Dep. at 34. Indeed, Fair was able
to take advantage of that opportunity at Meeting 1 without being invited to speak and without
any prior vetting of her comments.
Esserman’s countervailing arguments for a nonpublic forum classification largely raise
irrelevant concerns. His brief emphasizes that the ComStat meetings did not fall under the
Connecticut state law definition of public meetings for the purposes of FOIA, see Def.’s Br. at
14–16; however, the forum classification inquiry looks at the state actor’s discretionary choices
and practice, rather than focusing on tangential statutory obligations. In the same vein, Esserman
emphasizes that he could have closed the meetings to the public at any time. See Def.’s Br. at 15.
That is, in fact, a recognized characteristic of all designated public forums, see Perry, 460 U.S. at
46; however, as long as the forum remains open, government regulation of speech within in must
meet the standards of a public forum. See Lee, 505 U.S. at 678.
i. Standards Governing Limitation on Speech in Meeting 1
Having determined that Meeting 1 is a limited public forum, I must consider what
standards govern any governmental regulation on speech in that forum—although there is no
allegation that Fair’s speech actually was limited in Meeting 1, it is helpful to characterize the
context of her speech act in order to evaluate the permissibility of the actions that followed.
In a limited public forum, speech falling within the categories or topics permitted in that
forum are subject to the same limitations as for any other public forum, see Lee, 505 U.S. at
678—that is, content-neutral time, place, and manner regulations are permissible if they are
narrowly tailored to serve a significant government interest and leave open ample alternative
channels of communication, whereas content-based restrictions must be necessary and narrowly
tailored to serve a compelling state interest. See Perry, 460 U.S. at 45; Make the Road, 378 F.3d
at 142. Restrictions on speech falling outside of the permitted categories, however, are subject to
the same limitations as any other nonpublic forum—that is, restrictions must only be reasonable
and viewpoint neutral. Make the Road, 378 F.3d at 134.
Esserman implicitly suggests that Fair’s comments at Meeting 1 could have been validly
subject to limitations either because they were not made in an appropriate manner or because
they fell outside of the permitted categories, and as a result of either of those violations, impeded
the valid purposes of the meeting. Viewing the record in the light most favorable to Fair,
however, neither of those implications is supported beyond any genuine dispute. First, although
Esserman asserts that he received complaints that Fair’s comments were loud, argumentative,
and disruptive, he has not pointed to any evidence from any person with first-hand knowledge
and, more importantly, the complaints he received appear to have been based on the content of
her statements—his testimony could be read to suggest that he was responding to some people
who were upset and angered by what she said rather than by how she said it.3 See Esserman Dep.
at 46–47. By contrast, Fair has presented evidence that her comments were made in an
appropriate manner, were well-received by at least one police officer, and were followed by a
“peaceful” end to the meeting. Fair’s post-meeting email admitting that she had “ruffled some
feathers” similarly does not amount to a conclusive admission that the manner in which she
spoke was inappropriate for the forum; instead, it is equally compatible with a recognition that
the content of her comments was controversial.
Esserman also implies that Fair exceeded the permissible topics allowed for the meeting
by discussing conduct “that subjected an officer to an internal affairs investigation” and internal
investigations were off-limits at ComStat meetings. See Def.’s Br. at 17. Fair, however, asserts
that her speech concerned officer conduct at a protest and the police’s commitment to serving
minority populations—topics that would seem to be appropriate in a meeting regarding strategies
for community policing—and denies that she discussed any internal affairs investigation or any
other private topic. Fair further asserts that she was not informed of any specific limitations on
permissible topics, nor was she provided with an agenda cabining the topics of the meeting.
Again, viewing the record in the light most favorable to Fair, one could infer that her comments
fell within the permissible topics for the meeting.
In sum, a reasonable jury could find on this record that Fair had and appropriately
exercised a First Amendment right to speak at Meeting 1 on the permissible topic of police
interactions with minority communities.
Contrary to the suggestion of defense counsel at the hearing, speech is not considered “disruptive” merely because
it is offensive to the listener, even if the offended party is a member of law enforcement. See Connick v. Myers, 461
U.S. 138, 148 n.8 (1983) (observing that protesting racial discrimination in a government agency is “a matter
inherently of public concern”).
b. ComStat Meetings 2 and 3
ComStat Meetings 2 and 3 were closed to the public, apparently as a result of Fair’s
comments in Meeting 1. As noted above, determining that the government has opened a
nontraditional forum to the public does not permanently change the characteristics of that forum.
The government “is not required to indefinitely retain the open character of the facility,” and
may indeed close the forum entirely to the public as it sees fit. Cornelius, 473 U.S. at 802; see
also Sons of Confederate Veterans, Virginia Div. v. City of Lexington, Va., 894 F. Supp. 2d 768,
773–74 (W.D. Va. 2012), aff’d, 722 F.3d 224 (4th Cir. 2013) (collecting court of appeals
decisions recognizing that the government may change the character of a nontraditional forum at
will). Moreover, the Supreme Court has clearly stated that the First Amendment is not violated
by a decision to close a formerly limited public forum “simply because [that decision] was
motivated by the conduct of the partisans on one side of a debate.” Hill v. Colorado, 530 U.S.
703, 724 (2000); see also Sons of Confederate Veterans, Virginia Div. v. City of Lexington, Va.,
894 F. Supp. 2d 768, 774 (W.D. Va. 2012), aff’d, 722 F.3d 224 (4th Cir. 2013) (discussing a ban
on the private use of state flagpoles enacted apparently in direct response to a request from a proConfederate group).
The parties dispute whether Esserman actually closed Meetings 2 and 3 to all members of
the general public, particularly in light of Reverend Kimber’s attendance at the third meeting.
Regardless of the outcome of that factual dispute, however, it is important to note that
Esserman’s deposition suggests that he closed the ComStat meetings to the public only
temporarily. See Esserman Dep. at 59–60 (stating that he did not recall whether the public was
barred from subsequent meetings, and that Fair would be permitted to attend meetings at that
time). Other courts have noted that the Supreme Court’s First Amendment framework does not
clearly address how to evaluate a temporary but total shutdown of a given forum. See Rhames v.
City of Biddeford, 204 F. Supp. 2d 45, 52 (D. Me. 2002). Nevertheless, it seems clear that a
temporary shutdown intended to stifle discussion on a particular topic, with plans to reopen the
forum after controversy surrounding that topic had been suppressed constitutes impermissible
censorship under any First Amendment analysis—indeed, such conduct is “the spitting image of
prior restraint.” ACT-UP v. Walp, 755 F. Supp. 1281, 1290 (M.D. Pa. 1991) (citing Larry
Tribe, American Constitutional Law 1040 (2d ed. 1988), and Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546, 553 (1975)); cf. Lakewood v. Plain Dealer Publishing Company, 486
U.S. 750, 758–68 (1988) (observing, in the context of the unbridled discretion doctrine, that
there is a significant difference between banning an activity altogether and permitting it on a
wholly discretionary basis, because, in the latter case, arbitrariness and unpredictability may
provide easy cover to censorship).
For instance, in ACT-UP v. Walp, 755 F. Supp. 1281 (M.D. Pa. 1991), the court
recognized that the temporary closure of a legislative gallery to the general public on a given
date was, in fact, a content-based restriction aimed at preventing members of the AIDSawareness group, ACT-UP, access to a limited public forum on the basis of their anticipated
protest-speech. Id. at 1289. The ACT-UP Court further rejected the government’s argument that
its interest in avoiding disruption was sufficiently compelling to justify that restriction, observing
that there was “no reasonable basis for fearing that [the relevant] speech would be disrupted.” Id.
In the same vein, in Rhames v. City of Biddleford, 204 F. Supp. 2d 45 (D. Me. 2002), in the
context of a temporary moratorium on a public access television channel, the court presented the
It is true that a city should not be able to shut down a park or a bandshell
temporarily so as to avoid a particular speech or a particular concert—that
is not a viewpoint neutral measure and violates the First Amendment.
Id. at 53.
Drawing all inferences in favor of Fair, a reasonable jury could find that similar conduct
occurred in the present case—that is, they could find that: (1) Fair spoke in a permissible
manner, on a permissible topic, and without causing disruption at ComStat Meeting 1; (2) as a
result of his disapproval of the content of Fair’s speech and with no meaningful indication that
she would actually disrupt any future meeting, Esserman enacted a ban on public participation
that, although universally applied, was in fact intended to silence her speech; and (3) after it
became clear that Fair and other like-minded individuals no longer sought to attend the meetings
to express their views, the meetings were reopened apparently without any new or additional
limitations on public attendance and participation.
That conduct would be impermissible regardless whether it took place in the context of a
limited public or a nonpublic forum. Like in ACT-UP, a reasonable jury could easily find that the
temporary closure was not content-neutral, but was instead specifically intended to silence Fair’s
comments on a controversial topic, and Fair has raised at least a genuine issue of fact regarding
whether Esserman had any reasonable basis to believe her presence or any ensuing comments
she might make would disrupt the meeting. And similarly, assuming Meetings 2 and 3 were
effectively converted to nonpublic fora and should be judged on that standard, that a reasonable
jury could find the exclusion was actually prompted by a disagreement with Fair’s position
would render it not “viewpoint neutral” and accordingly not permissible under First Amendment
principles. See Make the Road, 378 F.3d at 143 (stating that restrictions on speech in nonpublic
for “need only be reasonable and viewpoint neutral”) (citing Lee, 505 U.S. at 679). Access to
even a nonpublic forum cannot be restricted solely in “an effort to suppress expression merely
because public officials oppose the speaker’s view.” Cornelius, 473 U.S. at 800.
B. First Amendment Retaliation Claim
Neither party directly briefed the issue of First Amendment retaliation. Fair’s brief
incorrectly combines the questions of retaliation and forum-based standards, see, e.g., Pl.’s
Opp’n Br. at 10, and thereby fails to address the chilling requirement for a retaliation claim, and
Esserman’s brief does not touch the issue at all. Nevertheless, the parties did discuss that claim
during the oral argument on this motion.
When a private citizen makes a claim of First Amendment retaliation against a public
official, the Second Circuit requires that plaintiff to show:
‘(1) [the plaintiff] has an interest protected by the First Amendment; (2)
[the defendant’s] actions were motivated or substantially caused by [her]
exercise of that right; and (3) [the defendant’s] actions effectively chilled
the exercise of [her] First Amendment right.’4
Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008) (quoting Curley v. Village of
Suffern, 268 F.3d 65, 73 (2d Cir. 2001)). I assume here that Fair has met the protected activity
requirement, and proceed to consider the second and third elements.
To meet the causation requirement, the plaintiff must show evidence that amounts to
more than “but for” causation, and indicates that the defendant acted with retaliatory intent. See
Greenwich Citizens Comm., Inc. v. Ctys. of Warren & Washington Indus. Dev. Agency, 77 F.3d
26, 30 (2d Cir. 1996) (discussing the state of mind requirement for a retaliation claim in the
litigation context); Grossbaum v. Indianapolis-Marion Cty. Bldg. Auth., 909 F. Supp. 1187, 1193
(S.D. Ind. 1995), aff’d, 100 F.3d 1287 (7th Cir. 1996) (rejecting plaintiff’s “but for” causation
The “chilling” requirement has also be formulated more generally as an “adverse action” requirement, apparently
because of some spillover from retaliation claims in the employment context; regardless, courts seem to agree that
the chilling element is required where, in cases like the present one, “a plaintiff states no harm independent of the
chilling of [her] speech.” Puckett v. City of Glen Cove, 631 F.Supp. 2d 226, 239 (E.D.N.Y. 2009); see also Bartels v.
Inc. Vill. of Lloyd, 751 F. Supp. 2d 387, 397 (E.D.N.Y. 2010) (holding that the chilling element is necessary where
no other harm is alleged).
argument, observing that “the law of retaliation focuses on the desire to punish or get even”). If
the plaintiff shows by a preponderance of the evidence that the defendant had improper
motivations for his actions, however, the defendant may still avoid liability if he can show that
he would have taken the same actions even in the absence of his retaliatory motive. See
Greenwich Citizens Comm., Inc., 77 F.3d at 31 (adopting the dual-motivation analysis articulated
in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)).
Viewing the record in the light most favorable to Fair, a reasonable jury could find that
Esserman has essentially admitted the causation element. There is no question that his actions in
closing the ComStat meetings to the public were the direct result of Fair’s comments, and were
specifically aimed at preventing her attendance and comments at subsequent meetings. Esserman
has argued that Fair was removed as a procedural matter for being “disruptive,” but a reasonable
jury could just as easily infer that he was motivated by hostility towards the content of her
comments, which were critical of the department. Moreover, even if Esserman himself harbored
no retaliatory animus against Fair, other courts have suggested that the requisite motive may be
shown if the government is acting “in deference to the hostility of another party toward a
particular viewpoint”—i.e., in this case, if Esserman’s actions were intended to placate other
members of the department upset by the content of Fair’s speech. Grossbaum, 909 F. Supp. at
1196 (citing Air Line Pilots Ass’n Int’l v. Dept. of Aviation, 45 F.3d 1144, 1157 (7th Cir. 1995)).
To meet the chilling requirement, Scott “must come forward with evidence showing
either that (1) [the defendant] silenced [her] or (2) [the defendant’s] actions had some actual,
non-speculative chilling effect on [her] speech.” Williams, 535 F.3d at 78 (quotation marks and
citation omitted). “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of
specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1,
13–14 (1972). Thus, “[w]here a party can show no change in [her] behavior, [s]he has quite
plainly shown no chilling of [her] First Amendment right to free speech.” Curley, 268 F.3d at 73.
If Fair’s retaliation claim relied solely on evidence that her speech was chilled outside of that
context, it would not be sufficient to survive the Esserman’s motion—when asked at the hearing,
Fair claimed she suffered from a loss of confidence and ostracization from her activist
community, which is precisely the kind of subjective chill the Supreme Court has held to be
inadequate. As noted above, however, a reasonable jury could find that Esserman’s targeted
exclusion of Fair from the ComStat meetings impermissibly silenced her by preventing her from
speaking at or attending subsequent ComStat meetings, even after those meetings had been
reopened to the public. Thus, to the extent that Fair claims she was “silenced” by her targeted
exclusion from the ComStat meetings, her retaliation claim simply overlaps with her claim of a
direct First Amendment violation and survives as an alternative to that claim.
C. Miscellaneous Remaining Issues
Esserman argues that to the extent Fair is still seeking injunctive relief, that claim should
be denied as moot because Esserman is no longer employed as the Chief of Police. Def.’s Br. at
1 n.1. The complaint states that Esserman is sued “in his individual and official capacities.”
Compl. at ¶ 4. Accordingly, the claim for injunctive relief against Esserman in his personal
capacity is dismissed and the claim for such relief against his official capacity will proceed, but
the current Chief of Police should be substituted for Esserman pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure. See Correction Officers Benev. Ass’n v. Kralik, 2009 WL
856395, at *5 (S.D.N.Y. Mar. 26, 2009). I note, however, that the relief Fair is seeking may be
mooted out in light of Esserman’s statement that she is currently permitted to attend ComStat
Fair also asserts that Esserman has now waived his qualified immunity argument by
failing to discuss that defense in his motion. There is no requirement, however, that qualified
immunity be raised at this stage of the proceedings. Instead, following the procedure explicitly
endorsed by the Second Circuit of considering qualified immunity only after a jury verdict is
rendered, see Stephenson v. Doe, 332 F.3d 68, 80 (2d Cir. 2003), Esserman here can and has
reserved his qualified immunity argument without waiving it.
Esserman’s motion for summary judgment is denied in substantial part. His motion for
summary judgment on Fair’s claims of direct and retaliatory violations of her First Amendment
rights is denied. Fair’s claim for injunctive relief against Esserman in his personal capacity is
dismissed and the claim for such relief against his official capacity will proceed, but the current
Chief of Police should be substituted for Esserman pursuant to Rule 25(d) of the Federal Rules of
Within one week of this Order, the parties shall jointly contact the court to schedule a
calendar call in order to set trial dates in this matter.
Dated at Bridgeport, Connecticut, this 12th day of July 2017.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
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