Qualified immunity takes the fun out of circus protest case

Some animal rights activists were arrested for protesting the Ringling Brothers circus at a childrens' footrace event. Their case went to trial in Connecticut. The trial judge rejected the plaintiffs' false arrest claim on qualified immunity grounds. The Court of Appeals affirms in a decision that broadly applies qualified immunity in the context of public protests.

The case is Zalaski v. City of Hartford, decided on July 23. Ringling Brothers sponsored the race. The plaintiffs were protesting the circus's poor treatment of its animals (“Got Freedom? The Animals Don’t”), alarming some of the children. To allow the kids to complete the race and preserve the right to protest, the police situated the protesters at a nearby grassy knoll. When some protesters refused to move, Sgt. Albert directed the plaintiffs to stand at the patio steps. But that also raised a problem, so the plaintiffs were again told to move. The Court tells us what happened next:

On the steps, the protestors no longer obstructed the walkway where races would be run, but, with their outstretched signs, they did partially block access to the registration/refreshment area. Upon hearing complaints to this effect, Sergeant Albert asked the ARF protestors on the steps to join the other protestors on the grassy knoll. At trial, Albert explained that he made the request because he expected the problem of free passage on the steps to worsen as more races were run and more people sought access to the platform. Albert testified that he viewed his directive as a “reasonable compromise” between the protestors and other race attendees. If the protestors on the steps moved to the nearby grassy knoll, where other protestors were already located, then “[t]he platform would not be obstructed. They [i.e., the protestors] would have the right to demonstrate, and the marathon people, the [Ringling] people, would have their right to their private property and have their event and continue to, you know, give out the food and the prizes.”

After the plaintiffs were arrested for criminal trespass and misdemeanor obstruction of free passage, the charges were dropped and they sued but lost their civil rights claim in the district court. The plaintiffs appeal to the Second Circuit, which affirms the defendants' verdict.

On plaintiffs' claim that the police lacked probable cause to arrest them, the Court of Appeals (Raggi, Calabresi and Pooler) says that qualified immunity "provides a broad shield. It does so to ensure 'that those who serve the government do so with the decisiveness and the judgment required by the public good.' Toward that end, it affords officials 'breathing room to make reasonable but mistaken judgments' without fear of potentially disabling liability." This is as broad a definition of qualified immunity as you'll find in the Second Circuit, though it draws from precedent.

The officer had arguable probable cause to arrest the plaintiffs for obstructing the event. While the plaintiffs did not literally interfere with the childrens' race, the officer had an objectively good-faith basis to arrest them for obstruction. Judge Raggi writes,

Connecticut has not so clearly limited obstruction to the condition of fully blocking pedestrian traffic as to foreclose a reasonable officer from making an arguably correct finding of probable obstruction based on plaintiffs’ actions in blocking part of the steps at the Red Nose Run. This is not to suggest that an officer would have arguable probable cause to arrest an individual for disorderly conduct under the Connecticut statute based simply upon the person’s presence in a location being utilized by others. We conclude only that the facts known to the police in this case–namely, that individuals were holding a large banner, positioned partially in front of a clearly visible point of ingress and egress to be used predominantly by young children–permitted reasonable officers to think that probable cause existed to support arrests for disorderly conduct.

The Second Circuit also rejects the argument that the officers' primary intent was to disrupt plaintiffs' free speech rights. "Sergeant Albert never attempted to silence or delay that speech. Rather, he sought to relocate it by a modest distance of approximately 20 feet, from a set of steps where protesters were hindering pedestrian traffic to a nearby grassy knoll where other like-minded protestors were already situated and exercising their First Amendment rights." The Court adds,

In requesting relocation, Albert knew that organizers of the Red Nose Run had a permit for their activities. He knew that numerous young children would be participating in the Run and that those children, some by themselves, others with attending adults, would have to use the steps in moving between the walkway where races were to occur and the platform where a tent was set up for registration, prizes, and refreshments. Albert knew that some people had already complained that the protestors holding large banners were hindering pedestrian traffic on or near the steps. He anticipated that these concerns would only increase as more races were run.

All things considered, the Sergeant did what he had to do. "A reasonable officer could have concluded that the only thing plaintiffs would lose by moving from the steps to the grassy knoll was the ability to hinder the movement of children and other race attendees as they traveled from the walkway to the patio platform. And therefrom, at least some reasonable officers could have inferred from plaintiffs’ refusal to relocate to a site where their right to protest would be undiminished, but their ability to obstruct would be lost, that their predominant intent in insisting on staying on the steps was to obstruct pedestrian traffic."