Friend v. Gasparino

20-3644
Friend v. Gasparino
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
A UGUST TERM 2021
No. 20-3644
MICHAEL FRIEND,
Plaintiff-Appellant,
v.
RICHARD G ASPARINO AND C ITY OF S TAMFORD,
Defendants-Appellees.
On Appeal from the United States District Court
for the District of Connecticut
A RGUED: D ECEMBER 10, 2021
D ECIDED: F EBRUARY 27, 2023
Before: L YNCH , S ULLIVAN, and MENASHI, Circuit Judges.
Plaintiff-Appellant Michael Friend appeals the judgment of the
district court granting the motions for summary judgment of
Defendants-Appellees Sergeant Richard Gasparino and the City of
Stamford. In 2018, Friend responded to a Stamford Police Department
distracted-driving enforcement operation by standing on a sidewalk
a few blocks south of the police units displaying a sign that read

-- 1 of 29 --

2
“Cops Ahead.” The police confiscated his signs, and Friend was
arrested, charged, and briefly detained. Friend pursued five claims
against Gasparino and the City for violations of his First, Fourth, and
Fourteenth Amendment rights. We VACATE in part, AFFIRM in
part, and REMAND the case for further proceedings consistent with
this opinion.
D AN B ARRETT (Elana Bildner, on the brief), ACLU
Foundation of Connecticut, Hartford, CT, for Plaintiff-
Appellant Michael Friend.
E LLIOT B. S PECTOR (David C. Yale, on the brief), Hassett &
George, PC, Simsbury, CT, for Defendant-Appellee Richard
Gasparino.
B ARBARA L. C OUGHLAN, Assistant Corporation Counsel,
City of Stamford, Stamford, CT, for Defendant-Appellee
City of Stamford.
MENASHI, Circuit Judge:
On April 12, 2018, Plaintiff-Appellant Michael Friend
responded to a distracted-driving enforcement operation conducted
by Defendant-Appellant Sergeant Richard Gasparino and the
Stamford Police Department. Friend stood down the street from
where the police were stationed and displayed a sign reading “Cops
Ahead.” Gasparino twice confiscated Friend’s signs and ultimately
arrested him for interfering with an officer under Connecticut
General Statutes § 53a-167a(a). Friend sued Gasparino and the City of
Stamford. Friend argued that Gasparino violated the First
Amendment when he confiscated Friend’s signs and violated the

-- 2 of 29 --

3
Fourth Amendment when he pursued a malicious prosecution of
Friend. Friend further argued that the City was liable for Gasparino’s
decision to set Friend’s bail at $25,000, a decision that Friend asserted
violated his rights to due process and equal protection under the
Fourteenth Amendment.
The district court granted summary judgment to Gasparino
and the City, and Friend appealed. We vacate the judgment of the
district court with respect to Friend’s First and Fourth Amendment
claims against Gasparino (Counts One, Two, and Three), affirm the
judgment with respect to Friend’s Fourteenth Amendment claims
against the City (Counts Four and Five), and remand the case to the
district court for further proceedings consistent with this opinion.
BACKGROUND
This case involves the arrest of Friend for his expressive
conduct relating to police activity in Stamford, Connecticut. After
telling Friend to move and twice confiscating Friend’s signs,
Gasparino arrested Friend on a charge of misdemeanor interference
with an officer, Conn. Gen. Stat. § 53a-167a, and detained him on
$25,000 bail. Friend’s bail was adjusted early the next morning, and
he was released on his own recognizance pending a hearing. At the
hearing, state prosecutors dropped the charge. Friend later brought
this action against Gasparino and the City.
I
On April 12, 2018, the Stamford Police Department conducted
a distracted-driving enforcement operation near the intersection of
Hope and Greenway Streets in Stamford. The officers ticketed drivers
for violations of Connecticut General Statutes § 14-296aa(b), which
prohibits “using a hand-held mobile telephone” or “mobile electronic

-- 3 of 29 --

4
device” to “call” or “text” while driving. The operation was “intended
to enforce the law prohibiting the use of cell phones while driving to
reduce motor vehicle collisions.” J. App’x 352. Gasparino acted as a
“spotter,” alerting officers farther down the street of drivers he
believed were operating vehicles while using cell phones. Id. at 336.
Friend saw the police presence and, at approximately 4:00 p.m.
that afternoon, sought to express his “object[ion] to the manner in
which police were conducting the operation” by displaying a sign.
Friend v. City of New Haven Police Dep’t, 490 F. Supp. 3d 492, 496
(D. Conn. 2020) (internal quotation marks omitted). Friend wrote
“Cops Ahead” on the sign and displayed it while standing on a public
sidewalk approximately two blocks south of the operation, near the
intersection of Hope and Cushing Streets. Friend alleges that
Gasparino approached him and advised him to “leave the spot where
he was standing.” Id. Gasparino told Friend that he was “interfering
with our police investigation,” took Friend’s sign, and instructed
Friend not to return with a sign or else he would be arrested. Id.
Friend then walked one block further south and displayed a
second sign, which also read “Cops Ahead,” near the corner of Hope
and Fahey Streets. He again stood on the public sidewalk and
displayed the sign to passing cars. After about thirty minutes,
Gasparino again approached and this time “arrested Friend for
‘interfering’ with the distracted driving investigation.” Id. Gasparino
charged Friend with misdemeanor interference with an officer in
violation of Connecticut General Statutes § 53a-167a(a).
Friend was transported to Stamford police headquarters, where
he was booked on the misdemeanor charge. Gasparino also
confiscated Friend’s two cell phones. Although Friend was charged

-- 4 of 29 --

5
with a misdemeanor, had no criminal record, and was a longtime
resident of Stamford, Gasparino set Friend’s bail at $25,000.
Gasparino testified that in setting the bail amount he considered
Friend’s “actions on scene” and “his personality.” Id. Friend did not
post bail, and he was held at the police station. At approximately 1:30
a.m. the following day, a bail commissioner reassessed Friend’s bail
to zero dollars and a promise to appear in court. Friend was released
at approximately 2:00 a.m.1
At Friend’s hearing, the state’s attorney entered a nolle prosequi
and stated to the court that Friend had in fact “helped the police.”
J. App’x 318. The prosecutor explained that “Friend actually was
helping the police do a better job than they anticipated because when
[drivers] saw the signs, they got off their cell phones.” Id. The
misdemeanor interference charge was dismissed.
II
On October 22, 2018, Friend sued Gasparino under 42 U.S.C.
§ 1983 in federal district court. On August 13, 2019, he filed an
amended complaint in which he added the City as a defendant.
Friend alleged that Gasparino violated his First Amendment right to
freedom of speech and his Fourth Amendment right against
malicious prosecution. Friend also asserted claims against the City for
violations of his Fourteenth Amendment rights to due process and
equal protection. After discovery, all parties moved for summary
judgment.
1 As a result of his confinement, Friend missed work at one of his jobs
delivering food. Because his work cell phone was confiscated, Friend
purchased a replacement phone.

-- 5 of 29 --

6
The district court granted Gasparino’s and the City’s motions
for summary judgment. Addressing Friend’s First Amendment
claims, the district court said that “it is questionable whether Friend’s
act of holding a ‘Cops Ahead’ sign a few blocks from the location in
which officers were stopping distracted drivers[] rises to the level of
expression of an opinion related to a matter of public significance.”
Friend, 490 F. Supp. 3d at 500. According to the district court, “[h]is
signs did not discuss a topic or express his opinion on it” and
therefore Friend’s speech was of “little, if any, public concern.” Id. The
district court further held that, even assuming Friend’s speech was
entitled to First Amendment protection, Gasparino’s conduct
“pass[ed] strict scrutiny” because the “compelling” governmental
interest at stake involved “saving lives by stopping distracted drivers
and issuing citations for their behavior.” Id. at 500-01. That interest
could be achieved “only … without Friend’s interference” such that
there “was no less restrictive alternative” than confiscating his signs
and removing him from the scene. Id. at 501 (internal quotation marks
omitted). “Had Friend wished to complain about particular police
procedures or in general about the police,” the district court added,
“he was free to do so elsewhere.” Id.
The district court rejected Friend’s Fourth Amendment claim
for malicious prosecution. The district court concluded that
“Gasparino had probable cause to arrest Friend” because “Gasparino
warned [Friend] not to return with another sign or he would be
arrested” and that “is precisely what Friend did.” Id. at 503.
According to the district court, Friend “was not arrested for verbal
conduct, but rather for his physical conduct in returning to the scene,
in direct contravention of Gasparino’s instructions.” Id.

-- 6 of 29 --

7
Finally, the district court dismissed Friend’s due process and
equal protection claims against the City. The district court concluded
that, because “Friend has failed to state facts establishing that
Gasparino was a policymaker” who had such “substantial authority”
to set the City’s bail policy, the municipality could not be held liable
for his conduct under Monell v. Dep’t of Social Servs., 436 U.S. 658
(1978). Friend, 490 F. Supp. 3d at 505-06. The district court said that
there was “insufficient evidence that in setting bail at $25,000, and
holding Friend for several hours, the [C]ity of Stamford violated
Friend’s constitutional rights ‘pursuant to a governmental policy or
custom’ that was ‘sufficiently persistent or widespread as to acquire
the force of law.’” Id. at 506 (quoting Reynolds v. Giuliani, 506 F.3d 183,
190, 192 (2d Cir. 2007)).
Friend timely appealed.
STANDARD OF REVIEW
We review the district court’s grant of summary judgment de
novo. Tiffany & Co. v. Costco Wholesale Corp., 971 F.3d 74, 83 (2d Cir.
2020). “Summary judgment is warranted only upon a showing ‘that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Johnson v. Killian, 680 F.3d
234, 236 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). In deciding
whether such a showing has been made we “resolve all ambiguities
and draw all permissible inferences in favor of the party against
whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128,
137 (2d Cir. 2003) (quoting Stern v. Trustees of Columbia Univ., 131 F.3d
305, 312 (2d Cir. 1997)). Only “[w]here the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party”

-- 7 of 29 --

8
is summary judgment appropriate. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
We hold that the district court erred in evaluating Friend’s
§ 1983 claims for violation of the First Amendment (Counts One and
Two) and for malicious prosecution in violation of the Fourth
Amendment (Count Three). We vacate the district court’s judgment
granting summary judgment to Gasparino on those claims. We affirm
the judgment insofar as the district court granted summary judgment
to the City on Friend’s § 1983 claims for violation of the Fourteenth
Amendment (Counts Four and Five). We remand to the district court
for further proceedings consistent with this opinion.
I
We first address Friend’s claim against Gasparino for violating
his Fourth Amendment right to be free of malicious prosecution.
Because it held that Gasparino had probable cause to arrest Friend,
the district court granted summary judgment to Gasparino. Friend,
490 F. Supp. 3d at 503. We vacate this aspect of the district court’s
judgment because neither Connecticut General Statutes § 53a-167a
nor any other provision of Connecticut law proscribed Friend’s
actions and therefore Gasparino lacked probable cause to arrest
Friend.
“To state a § 1983 malicious prosecution claim a plaintiff must
show a violation of his rights under the Fourth Amendment and must
establish the elements of a malicious prosecution claim under state
law.” Cornelio v. Connecticut, 32 F.4th 160, 178 (2d Cir. 2022) (internal
quotation marks omitted). Under Connecticut law, “a malicious
prosecution claim requires proof that (1) the defendant initiated or

-- 8 of 29 --

9
procured the institution of criminal proceedings against the plaintiff;
(2) the criminal proceedings have terminated in favor of the plaintiff;
(3) the defendant acted without probable cause; and (4) the defendant
acted with malice, primarily for a purpose other than that of bringing
an offender to justice.” Id. (internal quotation marks omitted).
“Because lack of probable cause is an element of a malicious
prosecution claim, the existence of probable cause is a complete
defense to a claim of malicious prosecution.” Stansbury v. Wertman,
721 F.3d 84, 94-95 (2d Cir. 2013) (internal quotation marks omitted).
“The probable cause standard under Connecticut law and
federal law are substantively identical, requiring a showing that
officers have knowledge or reasonably trustworthy information of
facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested has
committed or is committing a crime.” Washington v. Detective, 29 F.4th
93, 104-05 (2d Cir. 2022) (internal quotation marks omitted). As
Gasparino recognizes, “the[] undisputed intentional acts which
served as the basis for probable cause” consisted of “returning and
displaying another sign in contravention of [Gasparino’s] order[,]
which constituted an intent to again interfere with the distracted
driver enforcement.” Gasparino Br. 16. Gasparino does not suggest
that there was probable cause to believe Friend “committed any other
offense other than interfering with a police officer” under
§ 53a-167a(a). J. App’x 170 (deposition of Gasparino); see also Friend,
490 F. Supp. 3d at 503.
We hold that there was no probable cause to arrest Friend
because § 53a-167a(a) did not prohibit Friend’s actions and
§ 53a-167a(a) was the only basis that has been suggested for believing
that Friend was committing any crime. Section 53a-167a(a) provides

-- 9 of 29 --

10
that “[a] person is guilty of interfering with an officer when such
person obstructs, resists, hinders or endangers any peace officer … in
the performance of such peace officer’s … duties.” Conn. Gen. Stat.
§ 53a-167a(a). The Connecticut Supreme Court has expressly
“construe[d] § 53a-167a to proscribe only physical conduct and
fighting words that by their very utterance inflict injury or tend to
incite an immediate breach of the peace.” State v. Williams, 534 A.2d
230, 239 (Conn. 1987) (internal quotation marks omitted). Thus, the
Connecticut Supreme Court has “exclude[d]” from the scope of
§ 53a-167a “situations in which a defendant merely questions a police
officer’s authority or protests his or her action.” Id. at 238. Connecticut
courts have accordingly held that the statute does not prohibit even
text messages directing the subject of an investigation not to
cooperate with police or alerting the subject about police activity.2
2 In State v. Sabato, the Connecticut Supreme Court affirmed the reversal of
a defendant’s conviction under § 53a-167a for having texted a witness
“telling him not to write a statement” for the police “and to keep his mouth
shut.” 138 A.3d 895, 900 (Conn. 2016) (internal quotation marks and
alteration omitted). The Connecticut Supreme Court explained that because
“§ 53a-167a does not proscribe such verbal conduct, … the defendant’s
conviction under that statute cannot stand.” Id. at 905. In State v. Lamantia,
a defendant successfully appealed her conviction under § 53a-167a for
texting a witness that the “cops are coming,” “that he should delete this text
conversation,” and that the witness should make various false statements
to the police so that their stories “match[ed].” 187 A.3d 513, 519 (Conn. App.
Ct. 2018). The Connecticut Appellate Court said that because “our Supreme
Court expressly limited [the statute’s] application to intentional
interference consisting of either physical conduct or fighting words that
inflicted injury or tended to incite an immediate breach of the peace,” id. at
522, “there was insufficient evidence to sustain [the] conviction for
interfering with a police officer” based on “text messages … which cannot
be construed as fighting words,” id. at 523.

-- 10 of 29 --

11
Courts in this circuit have also held that there is no probable
cause to arrest a defendant for speech under § 53a-167a. In Darbisi v.
Town of Monroe, we affirmed the district court’s denial of summary
judgment to a police officer who had effected such an arrest.
53 F. App’x 159, 159 (2d Cir. 2002). In that case, the plaintiff sued for
false arrest, malicious prosecution, and unlawful retaliation after the
officer arrested the plaintiff for allegedly lying to him. Id. The district
court held that the officer was “not entitled to qualified immunity”
because § 53a-167a(a) “as interpreted by the Connecticut Supreme
Court in State v. Williams clearly does not permit a criminal action for
lying to a police officer,” so the officer “did not have arguable
probable cause to make the arrest.” Id. (citation omitted). We
“affirm[ed] the judgment of the District Court with respect to
qualified immunity substantially for the reasons stated in its
opinion.” Id. In that opinion, the district court explained that the
“unequivocal statement” of the Connecticut Supreme Court
“concerning the scope of the statute leaves no room for an
interpretation that would permit an arrest for verbal interference
involving something other than fighting words.” Darbisi v. Town of
Monroe, No. 00-CV-01446, 2002 WL 32348250, at *2 (D. Conn. Jan. 11,
2002).
District courts have recognized as “well-settled” the “basic
proposition that only physical conduct and fighting words give rise
to a viable charge of interfering with an officer” under § 53a-167a.
Torlai v. LaChance, No. 14-CV-185, 2015 WL 9047785, at *7 (D. Conn.
Dec. 15, 2015). For that reason, neither a defendant’s “refusal to
answer questions” nor “his failure to disclose that the address listed
on his driver’s license was incorrect” provides police officers with
probable cause to arrest him for interference with an officer. Id. at *8;

-- 11 of 29 --

12
see also Berg v. Sorbo, No. 12-CV-228, 2014 WL 1117643, at *8 (D. Conn.
Mar. 19, 2014) (denying a police officer’s motion for summary
judgment on the plaintiff’s false arrest and malicious prosecution
claims because there were issues of material fact calling into question
arguable probable cause to arrest the plaintiff under § 53a-167a).
Gasparino argues that Friend violated § 53a-167a by refusing to
comply with Gasparino’s directive to leave the area and not to return
with another sign. We do not believe that Gasparino’s directive could
create probable cause where there was none before. Gasparino still
cannot identify a crime that he would have had probable cause to
suspect was occurring. As we have explained, § 53a-167a proscribes
only “physical conduct” and “fighting words.” Williams, 534 A.2d at
239. Friend’s refusal to end his protest was neither. To be sure, the
Connecticut Supreme Court has said that § 53a-167a covers the
refusal to comply with “lawful police commands or orders.” State v.
Aloi, 911 A.2d 1086, 1097 n.22 (Conn. 2007). But Gasparino’s directive
was not such a command or order because Friend was violating no
law by standing on the sidewalk and displaying his sign, and
Garparino had no lawful reason to order him to desist from that
conduct. Cf. Gregory v. City of Chicago, 394 U.S. 111, 120 (1969) (Black,
J., concurring) (“To let a policeman’s command become equivalent to
a criminal statute comes dangerously near making our government
one of men rather than of laws.”).3
3 The district court’s suggestion that Friend was arrested for his “physical
conduct in returning to the scene” rather than for his speech is
unpersuasive. Friend, 490 F. Supp. 3d at 503. Gasparino did not tell Friend
that he could not stand on the sidewalk in a particular spot but that he could
not return “with another sign.” Id. at 496. Gasparino objected not simply to
Friend’s presence but to the message conveyed by his sign.

-- 12 of 29 --

13
Because the existence of probable cause is a complete defense
to a malicious prosecution claim, the district court did not consider
the other elements of that claim. We hold that Friend’s arrest was
unsupported by probable cause and vacate the district court’s grant
of summary judgment on Count Three. We remand for the district
court to consider whether the other elements of Friend’s malicious
prosecution claim are met and whether Gasparino has a defense of
qualified immunity.
II
We next address Counts One and Two—which allege that
Gasparino violated Friend’s First Amendment rights. The district
court granted summary judgment to Gasparino on these counts for
two reasons. First, the district court suggested that Friend’s speech
was not eligible for protection under the First Amendment. Second,
the district held that, even if Friend’s speech were constitutionally
protected, there was no dispute of material fact as to whether
Gasparino’s actions in confiscating Friend’s signs and arresting him
satisfied strict scrutiny. The district court erred in both conclusions.
A
The First Amendment provides that “Congress shall make no
law … abridging the freedom of speech,” U.S. Const. amend. I, and
this prohibition also applies to state governments, see Cantwell v.
Connecticut, 310 U.S. 296, 303 (1940). “As a general matter, ‘the First
Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter, or its
content.’” Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (quoting Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983)). “[T]his principle, like
other First Amendment principles, is not absolute.” Id. The First

-- 13 of 29 --

14
Amendment has historically “permitted restrictions upon the content
of speech in a few limited areas.” United States v. Stevens, 559 U.S. 460,
468 (2010) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83
(1992)). “These historic and traditional categories long familiar to the
bar” include “obscenity, defamation, fraud, incitement, and speech
integral to criminal conduct”—“well-defined and narrowly limited
classes of speech, the prevention and punishment of which have
never been thought to raise any [c]onstitutional problem.” Id. at 468-
69 (internal quotation marks and citations omitted). While there may
“exist ‘some categories of speech that have been historically
unprotected but have not yet been specifically identified or discussed
in our case law,’” the “First Amendment stands against any
‘freewheeling authority to declare new categories of speech outside
the scope of the First Amendment.’” United States v. Alvarez, 567 U.S.
709, 722 (2012) (alterations omitted) (quoting Stevens, 559 U.S. at 473).
The speech in this case does not fall into any of these traditional
categories of unprotected speech and the district court was not
entitled to create a new “First Amendment Free Zone” that left it
unprotected. Stevens, 559 U.S. at 469 (quoting Bd. of Airport Comm’rs v.
Jews for Jesus, Inc., 482 U.S. 569, 574 (1987)). The district court said that
speech must “rise[] to the level of expression of an opinion related to
a matter of public significance” in order to receive First Amendment
protection. Friend, 490 F. Supp. 3d at 500. But that is not correct. The
First Amendment does not “permit the Government to imprison any
speaker so long as his speech is deemed valueless or unnecessary.”
Stevens, 559 U.S. at 471. The First Amendment “reflects a judgment by
the American people that the benefits of its restrictions on the
Government outweigh the costs,” and the Constitution “forecloses

-- 14 of 29 --

15
any attempt to revise that judgment simply on the basis that some
speech is not worth it.” Id. at 470.
The district court’s suggestion that only “expression[s] of an
opinion related to a matter of public significance” merit First
Amendment protection is unsupported in our case law. Friend, 490
F. Supp. 3d at 500. To be sure, there are circumstances in which it
matters whether speech addresses a matter of public concern. For
example, a public employee receives First Amendment protection
from retaliation based on speech if he “spoke as a private citizen and
the speech at issue addressed a matter of public concern.” Agosto v.
N.Y.C. Dep’t of Educ., 982 F.3d 86, 95 (2d Cir. 2020) (alteration omitted)
(quoting Montero v. City of Yonkers, 890 F.3d 386, 393 (2d Cir. 2018)).
And a defendant in a defamation or other tort action receives First
Amendment protection from liability when his “statements were on
matters of public concern.” Snyder v. Phelps, 562 U.S. 443, 451 (2011).
Yet Friend is neither a public employee alleging retaliation by
his employer nor a defamation defendant seeking protection from tort
liability. He is a private citizen who was speaking on a public
sidewalk when the police confiscated his signs and arrested him. He
does not need to establish that his speech addressed “a matter of
public significance” in order to receive the protection of the First
Amendment. Cf. Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n, 460
U.S. 37, 45 (1983) (“In places which by long tradition or by
government fiat have been devoted to assembly and debate, the rights
of the state to limit expressive activity are sharply circumscribed.”).
“The First Amendment’s guarantee of free speech does not extend
only to categories of speech that survive an ad hoc balancing of
relative social costs and benefits.” Stevens, 559 U.S. at 470.

-- 15 of 29 --

16
As it turns out, Friend was speaking on a matter of public
concern. “The freedom of individuals verbally to oppose or challenge
police action without thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a police
state.” City of Houston v. Hill, 482 U.S. 451, 462-63 (1987). The district
court observed that “[a]lthough Friend states that he ‘objected to the
way police were issuing tickets,’ no where does Friend state how such
issuance was unlawful or improper.” Friend, 490 F. Supp. 3d at 500
(alteration omitted). But a citizen does not need to show that a police
practice is unlawful—or that it deviates from some notion of
propriety—in order to object to it.
Nor did Friend need to express his objection in a conventional
way. As the Supreme Court has said, “a narrow, succinctly articulable
message is not a condition of constitutional protection.” Hurley v.
Irish-Am. Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S. 557, 569
(1995). Friend was not required to make a public policy argument in
support of his objection; even a “crude form of protest” expressing
visceral disdain for government actions qualifies for First
Amendment protection. Cohen v. California, 403 U.S. 15, 21 (1971).
Indeed, even if Friend had not objected to the government’s conduct
at all, simply reporting on the government’s activities would qualify
for First Amendment protection. A newspaper’s front page is as
protected against government censorship as the editorial page. See
N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971).
Friend’s speech would have lacked First Amendment
protection if it were “integral to criminal conduct,” a category of
speech that historically may be restricted. Stevens, 559 U.S. at 468. The
“constitutional freedom for speech and press” does not “extend[] its
immunity to speech or writing used as an integral part of conduct in

-- 16 of 29 --

17
violation of a valid criminal statute.” Giboney v. Empire Storage & Ice
Co., 336 U.S. 490, 498 (1949). Thus, “the First Amendment is quite
irrelevant if the intent of the actor and the objective meaning of the
words used are so close in time and purpose to a substantive evil as
to become part of the ultimate crime itself.” United States v. Freeman,
761 F.2d 549, 552 (9th Cir. 1985) (Kennedy, J.). “In those instances,
where speech becomes an integral part of the crime, a First
Amendment defense is foreclosed even if the prosecution rests on
words alone.” Id.4 Thus, in some cases, speech that helps another
person engaged in criminal activity evade detection by law
enforcement may be subject to criminal penalties. See, e.g., United
States v. Cassiliano, 137 F.3d 742, 744, 747 (2d Cir. 1998) (affirming an
obstruction-of-justice sentencing enhancement because the defendant
contacted a “principal target[] of the government’s investigation[]” to
“alert[]” him “to the investigation and discuss[] whether they would
lie to” investigators); United States v. Arzola, 528 F. App’x 487, 491, 498-
500 (6th Cir. 2013) (affirming an enhancement because a defendant
alerted a co-conspirator before law enforcement executed a search
warrant).5
4 For example, constitutional protection does not extend to solicitation of
child pornography, United States v. Williams, 553 U.S. 285, 299 (2008),
extortionate threats, Virginia v. Black, 538 U.S. 343, 362-63 (2003), or advice
to foreign terrorist organizations, Holder v. Humanitarian Law Project, 561
U.S. 1, 39 (2010).
5 There are also certain circumstances in which the state may impose
criminal liability for the disclosure of sensitive law enforcement
information even if the defendant was not a co-conspirator to an underlying
crime. See, e.g., United States v. Aguilar, 515 U.S. 593, 605 (1995) (rejecting a
First Amendment challenge to a criminal statute that restricts individuals

-- 17 of 29 --

18
Friend’s speech does not fall within this category. Friend was
not acting in coordination with lawbreakers such that he could be said
to have been engaged in a conspiracy to commit violations and evade
detection. See, e.g., United States v. Murphy, 957 F.2d 550, 551, 554 (8th
Cir. 1992) (affirming a conviction for conspiracy to defraud the United
States in which the defendant had a “longstanding tacit agreement”
to provide “information” that a co-conspirator “used … to avoid
detection”); United States v. Romero, 518 F. App’x 648, 651 (11th Cir.
2013) (affirming a conviction for conspiracy to receive and possess
stolen goods and commit cargo theft based in part on evidence that
the defendant “tipped off his co-conspirators to a possible raid” by
law enforcement, which “allow[ed] a co-conspirator to remove
evidence” and “furthered the crime by helping to protect the other
participants from apprehension by the police”).
Gasparino cannot identify a crime that Friend committed, let
alone a crime to which Friend’s speech was “integral.” The only
offense with which Friend was charged—and for which Gasparino
arrested Friend—was interference with a police officer under
§ 53a-167a. But, as explained above, Friend’s conduct did not violate
from “disclos[ing] wiretap information ‘in order to obstruct, impede, or
prevent’ the interception”); Boehner v. McDermott, 484 F.3d 573, 579 (D.C.
Cir. 2007) (“Aguilar stands for the principle that those who accept positions
of trust involving a duty not to disclose information they lawfully acquire
while performing their responsibilities have no First Amendment right to
disclose that information.”). Here, however, there is no argument that
Friend violated such a duty or statute. Aiding-and-abetting statutes also
may impose criminal liability on one who aids in the commission of a crime
or “counsels, commands, induces or procures” its commission, which
might be accomplished through words, 18 U.S.C. § 2(a), though that also
does not match Friend’s conduct here. See infra note 6.

-- 18 of 29 --

19
that statute. The Connecticut Supreme Court has long construed the
statute “to proscribe only physical conduct and fighting words that
by their very utterance inflict injury or tend to incite an immediate
breach of the peace.” Williams, 534 A.2d at 239 (internal quotation
marks omitted). That court has explained that Ҥ 53a-167a does not
proscribe” even a “text message exchange” in which the defendant
told a witness at a police station “to keep his mouth shut.” Sabato, 138
A.3d at 900, 905 (alteration omitted). This construction of the statute
“preserves the statute’s purpose to proscribe ‘core criminal conduct’
that is not constitutionally protected.” Williams, 534 A.2d at 239
(quoting Hill, 482 U.S. at 468). The U.S. Supreme Court has explained
that someone who interferes with an officer “might constitutionally
be punished under a tailored statute that prohibited individuals from
physically obstructing an officer’s investigation” but “may not be
punished under a broad statute aimed at speech.” Hill, 482 U.S. at 463
n.11. Friend did not physically obstruct the officers in this case, and
he did not utter fighting words or otherwise cause a breach of the
peace. Because there is no predicate crime that Friend even arguably
committed, Gasparino cannot show that Friend’s speech was
unprotected for being “integral to criminal conduct.” Stevens, 559 U.S.
at 468.6
6 Friend’s conduct also did not constitute incitement or aiding and abetting.
Friend’s sign was not “directed to inciting or producing imminent lawless
action” or “likely to incite or produce such action.” Brandenburg v. Ohio, 395
U.S. 444, 447 (1969). Furthermore, § 53a-8 of the Connecticut Penal Code,
which imposes criminal liability for aiding and abetting “an offense,” does
not extend to motor vehicle violations. Conn. Gen. Stat. § 53a-8; see State v.
Menditto, 110 A.3d 410, 416 (Conn. 2015) (“[I]nfractions, like motor vehicle
violations, do not constitute criminal offenses.”). The Connecticut Motor

-- 19 of 29 --

20
In short, there was no basis for suggesting that Friend’s speech
does not receive the protection of the First Amendment.
B
The mere fact that speech is protected by the First Amendment
does not mean that it is always immune from regulation. But
restricting such speech requires the government to satisfy a higher
burden than the district court applied in this case.
“In traditional public fora, 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,’ the government can enact content-based restrictions on
speech only if they are necessary to serve a compelling government
interest.” Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 341 (2d
Cir. 2010) (quoting Perry, 460 U.S. at 45). Here, Gasparino confiscated
Friend’s signs and then arrested him based on the content of his signs.
Gasparino’s actions must therefore satisfy strict scrutiny.
Strict scrutiny permits the government to restrict speech “only
if [it] proves that [its restrictions] are narrowly tailored to serve
compelling state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163
(2015). Narrow tailoring requires that the restriction on speech be
“necessary to serve the asserted compelling interest, … precisely
tailored to serve that interest, and … the least restrictive means
readily available for that purpose.” Hobbs v. County of Westchester, 397
F.3d 133, 149 (2d Cir. 2005) (internal quotation marks, alteration, and
Vehicle Code does not include a complicity provision. See Conn. Gen. Stat.
tit. 14.

-- 20 of 29 --

21
citation omitted). This is a “strict test” because “regulations of speech
based on its content ‘are presumptively invalid.’” Id. at 149 (quoting
R.A.V., 505 U.S. at 382).
The district court concluded that, even assuming Friend’s
speech was protected by the First Amendment, Gasparino’s actions
satisfied strict scrutiny because those actions served a compelling
state interest and were narrowly tailored to that interest. First, the
district court held that “the police department’s interest was in saving
lives by stopping distracted drivers and issuing citations for their
behavior” and that “this was a sufficiently compelling interest.”
Friend, 490 F. Supp. 3d at 500-01 (internal quotation marks omitted).
Second, the district court determined that “the only way in which
Gasparino could tailor punishment was to remove Friend and his
signs from the adjacent area,” that “[t]he operation could only
effectively continue without Friend’s interference,” and that “there
was no less restrictive alternative.” Id. at 501 (internal quotation
marks omitted). Both conclusions were erroneous.
While we agree that the state has “an unqualified interest in the
preservation of human life,” Washington v. Glucksberg, 521 U.S. 702,
728 (1997) (internal quotation marks omitted), the district court erred
by defining the interest as “saving lives by stopping distracted drivers
and issuing citations for their behavior,” Friend, 490 F. Supp. 3d at
500. In so defining the relevant interest, the district court did what the
Supreme Court has expressly disallowed: it took “the effect of the
[restriction] and posited that effect as the State’s interest.” Simon &
Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S.
105, 120 (1991). In Simon & Schuster, the Supreme Court held
unconstitutional a statute that “require[d] any entity contracting with
an accused or convicted person for a depiction of the crime … to turn

-- 21 of 29 --

22
over any income under that contract.” Id. at 109. While the Supreme
Court accepted that the state has “an undisputed compelling interest
in ensuring that criminals do not profit from their crimes,” it rejected
the state’s proffered interest of “ensuring that criminals do not profit
from storytelling about their crimes before their victims have a
meaningful opportunity to be compensated.” Id. at 119. The state
could not “explain why [it] should have any greater interest in
compensating victims from the proceeds of such ‘storytelling’ than
from any of the criminal’s other assets,” nor could it “offer any
justification for a distinction between this expressive activity and any
other activity in connection with its interest in transferring the fruits
of crime from criminals to their victims.” Id. at 119-20. Accordingly,
the state had to show that its regulation was narrowly tailored to the
“compelling interest in compensating victims from the fruits of the
crime.” Id. at 120. It was not allowed to define the interest as the
specific means of providing such compensation from “the proceeds
of the wrongdoer’s speech about the crime.” Id. at 120-21.
Like the state in Simon & Schuster, neither Gasparino nor the
district court explain why Connecticut has a compelling interest not
simply in saving lives, or even in the enforcement of distracted
driving laws, but specifically in doing so by “issuing citations” to
distracted drivers. Friend, 490 F. Supp. 3d at 500. As noted above, a
content-based restriction on speech must be narrowly tailored to a
compelling interest. The district court here, however, tailored the
compelling interest to the restriction by defining the compelling
interest in “saving lives” in terms of the specific means of serving that
interest—issuing citations—that Friend’s protest made more difficult
to accomplish. Defining the compelling interest so narrowly
“eliminates the entire inquiry concerning the validity of content-

-- 22 of 29 --

23
based discriminations” because “[e]very content-based
discrimination could be upheld by simply observing that the state is
anxious to regulate the designated category of speech” through the
means it has already chosen. Simon & Schuster, 502 U.S. at 120
(quoting Simon & Schuster, Inc. v. Fischetti, 916 F.2d 777, 785 (2d Cir.
1990) (Newman, J., dissenting)).
The compelling interest asserted in this case is properly defined
as the state’s interest in saving lives or perhaps in the enforcement of
distracted driving laws. We do not question the seriousness of the
state’s interest in enforcing traffic laws, including laws regulating
distracted driving. But we must ask whether Gasparino’s arrest of
Friend and confiscation of Friend’s signs were narrowly tailored to
advance those arguably compelling interests. As explained above,
Connecticut has not enacted any law that proscribes conduct such as
Friend’s. See supra Part I. As a result, Gasparino cannot establish that
his discretionary restriction of Friend’s speech was “necessary to
serve” Connecticut’s interests in saving lives or in enforcing traffic
laws. Hobbs, 397 F.3d at 149 (quoting R.A.V., 505 U.S. at 395).
Connecticut’s legislature and state courts have concluded that
restricting speech such as Friend’s is not necessary to advance the
state’s interests, and yet Gasparino unilaterally decided to impose
such a restriction. Gasparino identifies no exigency or emergency to
justify his decision but argues instead that he could impose a speech
restriction in his discretion based on arguments that the state itself has
disclaimed. That cannot satisfy narrow tailoring.7
7 We need not decide whether a state could under any conceivable set of
circumstances prohibit actions such as Friend’s or what sort of showing it

-- 23 of 29 --

24
In sum, the confiscation of Friend’s signs and his subsequent
arrest violated Friend’s right to freedom of speech. We vacate the
district court’s grant of summary judgment on Counts One and Two.
We remand for the district court to consider Gasparino’s defense of
qualified immunity in the first instance.
III
Friend brought his final claims against the City for adopting
bail-setting policies that he argues violated his constitutional rights to
due process and equal protection (Counts Four and Five). According
to Friend, the City is liable because it acted as “the moving force of
the constitutional violation” through municipal policy when
Gasparino set Friend’s bail at $25,000. Monell, 436 U.S. at 694. We
disagree and affirm the judgment of the district court insofar as it
granted summary judgment to the City.
In Monell, the Supreme Court held that “municipalities and
other local government units” are “persons” who may be sued under
§ 1983. Id. at 690. At the same time, Monell emphasized that “a
municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Id. at 691. Thus, “[t]he elements of a Monell claim are
(1) a municipal policy or custom that (2) causes the plaintiff to be
subjected to (3) the deprivation of a constitutional right.” Agosto, 982
F.3d at 97. In other words, municipalities may not be held liable
would need to justify such a law. Cf. Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 666 (1994) (noting “the deference afforded to legislative findings” and
the courts’ “obligation to exercise independent judgment when First
Amendment rights are implicated … to assure that, in formulating its
judgments, Congress has drawn reasonable inferences based on substantial
evidence”).

-- 24 of 29 --

25
“unless action pursuant to official municipal policy of some nature
caused a constitutional tort.” Monell, 436 U.S. at 691 (emphasis
added). “Official municipal policy includes the decisions of a
government’s lawmakers, the acts of its policymaking officials, and
practices so persistent and widespread as to practically have the force
of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011).
According to Friend, “Gasparino is a municipal policymaker”
because his “decision on bail was, for ‘practical’ reasons, the last
word,” which meant that the $25,000 bail reflected municipal policy.
Friend Br. 30, 38. We disagree. Gasparino’s decision on bail was not
the last word. The bail commissioner reviewed—and reversed—
Gasparino’s bail decision within hours. See Agosto, 982 F.3d at 94
(noting that decisions “reviewable by higher-level officials … could
not be ‘final’ policymaking decisions”); see also Manor Healthcare Corp.
v. Lomelo, 929 F.2d 633, 638 (11th Cir. 1991) (holding that a mayor
could not be the final policymaker with respect to planning and
zoning when the city council had “the power to override” the mayor’s
veto and “ha[d] the final vote” on zoning matters).
Gasparino’s decision was not effectively unreviewable simply
because it took some time for the bail commissioner to review it. But
even if we were to conclude that Gasparino was effectively the last
word for some limited period of time, “[i]t is not enough that an
official had discretion to make a decision that was unreviewable.
Rather, the official must have been sufficiently high up in the
municipal hierarchy that he was responsible under state law for
making policy in that area of the municipality’s business.” Agosto, 982
F.3d at 98 (internal quotation marks and citations omitted). “In
identifying the official having authority with respect to a particular

-- 25 of 29 --

26
issue, federal courts must analyze state law.” Vives v. City of New York,
524 F.3d 346, 350 (2d Cir. 2008).
In Agosto, we affirmed the district court’s grant of summary
judgment to a city department of education. 982 F.3d at 101. The
plaintiff, a teacher, sued the department on account of his school
principal’s disciplinary letters, which the plaintiff claimed constituted
retaliation under the First Amendment. Id. at 93-94. We held that his
claim failed under Monell because the plaintiff had “not identified a
municipal policy that allegedly caused a constitutional violation.” Id.
at 91. Our analysis began by noting that the plaintiff “points to no
state authority indicating that a New York City school principal has
final responsibility under state law for making policy in any area of
the Department of Education’s business at issue in this case such that
his edicts or acts would be considered to represent official policy for
the entire municipality.” Id. at 98 (internal quotation marks,
alterations, and citation omitted). We additionally rejected the
plaintiff’s argument that the school principal was the “de facto final
municipal policymaker on those specific matters involving” the
plaintiff because “[a] municipality’s going along with discretionary
decisions made by its subordinates is not a delegation to them of the
authority to make policy.” Id. at 100 (internal quotation marks and
alterations omitted).
As in Agosto, in this case Friend “points to no state authority”
indicating that Gasparino has “final responsibility under state law for
making policy.” Id. at 98 (internal quotation marks and alteration
omitted). The Connecticut law governing the duties of law
enforcement officers in setting the terms and conditions of release of
arrestees says nothing to indicate that a single patrol sergeant may set
bail policy for the municipality. Conn. Gen. Stat. § 54-63c. The statute

-- 26 of 29 --

27
contemplates only that individual decisions—including releasing an
arrestee with a promise to appear—are within the authority of the
police chief or his or her designees. Id. § 54-63c(f). That is insufficient
to establish that the City vested Gasparino with the “authority to set
final, municipality-wide policy.” Agosto, 982 F.3d at 91.
In fact, Stamford Police Procedure 120, enacted by order of the
Stamford Chief of Police, provides that “[d]esk [s]upervisor[s] shall”
be “responsible for setting reasonable bonds to assure” an arrestee’s
“appearance in court.” J. App’x 192-93.8 Though the policy does not
specify factors to be considered in assessing what is “reasonable” in
this context, the record includes testimony that desk supervisors
generally set bonds based on factors such as the seriousness of the
charged offense and the arrestee’s criminal history and community
ties; desk supervisors also seek consistency with bonds previously set
by senior officers, judges, and bail commissioners. J. App’x 215
(deposition of Sergeant Steve Perrotta); id. at 227 (deposition of
Sergeant Ken Jarrett); id. at 266-67 (deposition of Lieutenant Nick
Montagnesi).
Friend adduced testimony that, in practice, desk supervisors
routinely permit lower-ranking patrol sergeants such as Gasparino to
set bonds as a matter of “general[] defer[ence]” to the patrol
sergeant’s “more intimate knowledge of the person that was arrested,
and what brought them there.” Id. at 208-09 (deposition of Perrotta);
see also id. at 223 (deposition of Jarrett). Friend argues that the
authority to make policy was thereby devolved, and a “well-settled
custom” empowered Gasparino to make municipal policy when he
8 Desk supervisors outrank patrol sergeants and report to the
“[c]ommanding [o]fficer of the [h]eadquarters [s]ection.” J. App’x 192.

-- 27 of 29 --

28
set Friend’s bail. Friend Br. 30. Yet even if there were a “well-settled
custom” of “general[] defer[ence]” to the patrol sergeant’s bail
determinations, that would at most establish that the City “[went]
along with discretionary decisions made by its subordinates.” Agosto,
982 F.3d at 100 (alteration omitted) (quoting City of St. Louis v.
Prapotnik, 485 U.S. 112, 130 (1988) (plurality opinion)). Such
acquiescence “is not a delegation … of the authority to make policy.”
Id. (quoting Prapotnik, 485 U.S. at 130).9
In this case, Gasparino was not the final decisionmaker because
his decision was subject to review by the bail commissioner, who in
fact reversed that decision. And even focusing on the period in which
Friend awaited the bail commissioner’s review, Friend’s Monell claim
fails for the additional reason that Gasparino was not a final
policymaker. Were we to “equat[e] a final decisionmaker with a final
policymaker,” we “would effectively impose respondeat superior
liability—making the municipality liable for the conduct of its
employees—in violation of Monell.” Agosto, 982 F.3d at 100. For these
reasons, we affirm the judgment of the district court with respect to
Counts Four and Five.
9 Moreover, the record indicates that Gasparino’s bail-setting decision was
inconsistent with the City’s bail-setting policy. According to his own
account, Gasparino did not determine that the $25,000 bond was a
“reasonable bond” to assure Friend’s appearance in court but based the
bond on Friend’s “actions on scene and his, honestly, his personality from
what I got from him.” J. App’x 179-80. At oral argument, the City said that,
based on the record at summary judgment, Gasparino’s decision to set
Friend’s bail at $25,000 did not comply with its bail-setting policy. Oral
Argument Audio Recording at 47:05.

-- 28 of 29 --

29
CONCLUSION
The district court erred when it held that Friend’s arrest was
supported by probable cause and that Gasparino’s actions did not
violate Friend’s First Amendment right to freedom of speech. Because
these were threshold determinations, we vacate the district court’s
grant of summary judgment as to Counts One, Two, and Three, and
remand for further proceedings consistent with this opinion. We
affirm the judgment of the district court as to Counts Four and Five.

-- 29 of 29 --