KROL v. CRAWFORD et al

Filing 38

OPINION. Signed by Judge Katharine S. Hayden on 11/17/15. (DD, )

Not for Publication

United States District Court
for the District of New Jersey

COLLEEN KROL
Plaintiff,

Civil No: 12-7456 (KSH)

V.
STEVEN CRAWFORD; JOHN DOES #1 to #5,
individually and as officers and employees of the
Township of Mendham; JOHN DOES #6 to #10,
individually and as officers and employees of the
State of New Jersey; and the TOWNSHIP OF
MENDHAM, a New Jersey municipal
corporation

OPINION

Defendants.

Katharine S. Hayden, U.S.D.J.
On December 5, 2012, plaintiff Colleen Krol, filed a 16 count complaint against
individual, unnamed members of the Mendham Township police department; Steven Crawford,
the chief of police; and the Township of Mendham. On September 30, 2013, this Court dismissed
the claims against the Township of Mendham and its employees and officers and preserved
Krol’s constitutional claims against Crawford. (D.E. 15, “Opinion Motion to Dismiss,” 5.)
Pursuant to the Fed. R. Civ. P. 12(b)(6) pleading standard that only requires the complaint to
“contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face,” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009), the Court found that “[r]estrictions on protests
can implicate first amendment rights, which in turn can be vindicated via 42 U.S.C. § 1983,” and
that “Crawford directly interacted with Krol and his culpability is straightforwardly alleged.”
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(Id.) Although Krol was invited to amend to state claims against the dismissed defendants, no
amended complaint was filed. This case now comes before the Court on a motion for summary
judgment (D.E. 36) filed by Crawford, the sole remaining defendant. The motion for summary
judgment is unopposed.
Krol, a self-described “zealous advocate” against bear hunting, arranged to protest in
front of Governor Christopher Christie’s residence at 46 Corey Lane in Mendham Township,
New Jersey. (D.E. 36-3, Ex. A, “Compl.” ¶¶ 6, 10-11.) Krol had participated in similar
demonstrations, and as a result, she was well known to government officials. (Compl. ¶ 6.) Near
the governor’s residence Corey Lane is narrow, with heavy traffic, no sidewalks, and no traffic
lights. (D.E. 36-5, “Crawford Certification,” ¶¶ 6-8; D.E. 36-3, Ex. D “Krol Deposition,”
T104:4-14.) In December 2010, before Krol began her protests, she contacted Crawford’s office
at the Mendham police department and requested that she be allowed to protest “between three
and five or maybe later” in the evening. (Krol Deposition T27:6-9, T28-T29: 16-8.) Crawford
told Krol that she could protest between “one and three” in the afternoon and walk back and
forth in front of the governor’s property, but could not sit in the road or on the property. (Id.;
Crawford Certification, ¶¶ 10, 12-14.) Crawford states that the “time and parameters were agreed
upon by both Krol and the Mendham Township Police Chief.” (D.E. 36-3, Ex. B.) Krol
conducted her protest for five days, from December 6, 2010 to December 10, 2010. (Krol
Deposition, T54:4-9, T69: 4-6.)
On December 17, 2010, Krol called the Mendham Township police department to
provide notice that she intended to begin her protests, again in front of the governor’s home, this
time asking for different conditions. (Crawford Certification ¶ 15; Compl. ¶ 14.) She informed
the police that she had a disability which made it difficult for her to walk and asked permission

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to sit on the property. (Crawford Certification ¶ 15.) Krol and the Mendham police “had to
negotiate a new place to sit.” (Krol Deposition T72:20-25.) The police selected a location
“approximately a quarter of a mile down from the Governor’s house” with a wide, grassy
shoulder from which Krol could safely sit and protest. (Crawford Certification ¶ 25.) The police
reiterated that she did not have permission to sit or go onto the property. (Krol Deposition
T132:2-8.) On December 25, 2010 Krol protested from the new location, which was about 250
feet away from her original walking route. (Krol Deposition T85:5-154, T87:3-8.) She parked
her car another 250 feet from that spot. (Krol Deposition T87:16-20.) Police Sergeant Johnson
told Krol that this location was appropriate given safety concerns. (Krol Deposition T78:2-6,
T83:3-8; Crawford Certification ¶¶ 17-19.) In her deposition Krol stated that “I don’t think there
is any issue of safety that the police had to worry about on the roadway with me because I saw
people walking, riding, driving for all kinds of purposes.” (Krol Deposition T121:21-25.)
Krol alleges that Crawford violated her rights under the first amendment of the United
States Constitution and article one of the New Jersey Constitution, Counts 1-2, and the
Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination
(NJLAD), Counts 11-12. Crawford moves to dismiss them all. “The court shall grant summary
judgment if the movant shows there is no genuine dispute as to any material fact and the movant
is entitled to summary judgment.” Fed. R. Civ. P. 56(c). Krol did not file opposing papers, and
this Court deems all of the supported factual assertions as true. See Crymes v. Atlantic County,
2006 WL 1582064 (D.N.J. June 2, 2006) (Simandle, J.) (holding “[i]f the nonmoving party fails
to oppose the motion by evidence such as written objection, memorandum, or affidavits, the
court will accept as true all material facts set forth by the moving party with appropriate record

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support”). Accepting Crawford’s supported factual allegations, the Court sees no genuine issue
of material fact, and rules on the merits of this case as a matter of law.
In his motion, Crawford argues that Krol’s first amendment rights were not violated as
there were “[l]egitimate safety concerns” which allowed for the imposition of “minimal time,
place and manner restrictions.” (Motion for Summary Judgement, 2.) “Time, place, manner
regulations of protected speech are valid if: (1) they are justified without reference to the content
of the regulated speech; (2) they are narrowly tailed to serve a significant or substantial
government interest; and (3) they leave open ample alternative channels for communication.”
Ben Rich Trading, Inc. v. City of Vineland, 126 F.3d 155, 160 (3d Cir. 1997). The federal and
state constitution claims are both adjudicated under this standard since the state relies on “federal
constitutional principles in interpreting the free speech clause of the New Jersey constitution.”
Hamilton Amusement Ctr. V. Verniero, 156 N.J. 254, 264 (1998).
The time, place, and manner restrictions placed on Krol’s protests were appropriate. First,
the regulations imposed by Crawford were not content-based as there are no allegations that the
restrictions were based on Krol’s views against the bear hunt. Second, the government had a
significant interest in securing Krol’s safety and preventing traffic hazards. See e.g. Snell v. City
of York, PA, 564 F.3d 659 (3d Cir. 2009) (holding “that the government interest in promoting
traffic safety and traffic flow … while not ‘compelling,’ were significant”). The conditions that
forbid Krol from trespassing on private property, sitting on the side of a busy street, or
demonstrating during traffic and in bad light, are tailored to specifically address legitimate safety
concerns. Finally, there were alternatives: Krol had earlier exercised her rights during
December, 2010 by protesting while walking in front of Christie’s house and then sitting on the
shoulder during daylight hours. Accordingly, Count 1 and 2 are dismissed.

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The remaining counts against Crawford assert that Crawford violated the ADA and
NJLAD by “not allowing Plaintiff to sit, and forcing her to park at a distance.” (Compl. ¶ 56.)
Both statutes require that Krol show that (1) she has a disability; (2) she is qualified to meet the
“essential eligibility requirements for receipt of services or participation in programs or activities
provided by a public entity;” and (3) that because of her disability she was excluded from the
services or activity provided by a public entity. 42 U.S.C. § 12131; see Millington v. Temple
Univ. Sch. Of Dentistry, 261, Fed. Appx. 363, 365 (3d Cir. 2008); see also D.G. v. Somerset Hills
Sch. Dist., 559 F. Supp 2d 484, 502-03 (D.N.J. 2008) (Cooper, J.) (holding “NJLAD relies on the
same analytical framework as the Americans With Disabilities Act”). As Crawford explains,
Krol was not limited because of her disability; rather, limitations were imposed because of safety
concerns. (Motion for Summary Judgment, 22.) Although Krol complains about the distance
between the relocated spot and where she had been protesting, she fails to adduce any facts
suggesting that there was a deliberate attempt to curtail her rights based on her disability.
Instead, the record amply supports Crawford’s assertions about traffic and safety concerns.
Counts 11 and 12 are dismissed because there is simply no factual basis to show Krol was
discriminated against as a result of her disability
For the foregoing reasons, the Court grants Crawford’s motion for summary judgment.
/s/ Katharine S. Hayden_____
Katharine S. Hayden, U.S.D.J.

Date: November 17, 2015

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