Kurland v. City of Providence, et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
SHANNAH M. KURLAND,
Plaintiff,
v.
CITY OF PROVIDENCE, by and
through its Treasurer, James J.
Lombardi, III, GEORGE SMITH alias,
RALPH ABENANTE, alias, and KYLE
RICHARDS, alias, individually and in
their official capacities as police
officers in the City of Providence Police
Department, and HUGH T.
CLEMENTS, JR., alias, individually
and in his official capacity as Chief of
the City of Providence Police
Department, and STEVEN M. PARÉ,
alias, individually and in his official
capacity as Commissioner of Public
Safety for the City of Providence,
Defendants.
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C.A. No. 18-cv-440-MSM-LDA
MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
I. 	INTRODUCTION
On August 13, 2015, Shannah Kurland was attending a meeting of the Rhode
Island Homeless Advocacy Project to discuss the right to stand in public spaces, such
as sidewalks, particularly in the downtown Kennedy Plaza area. Conflicts between
the 	homeless 	population 	and 	business 	owners 	in 	the 	area 	were 	and 	remain
commonplace. 	Business owners complained of homeless individuals loitering near
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their businesses, and homeless individuals complained of being ordered to move from
public spaces near businesses by the Providence Police.1
Shortly after the meeting, Ms. Kurland’s associate received a call from a
homeless individual in the Kennedy Plaza area who claimed that police officers were
ordering people to move from the sidewalk near the CVS on Fulton Street. Because
Ms. Kurland was nearby, she decided to go to Kennedy Plaza to assess the situation.
When she arrived, she encountered Providence Police officers Ralph Abenante and
Kyle Richards.
Officers Abenante and Richards were assigned to the Bike Unit under the
supervision of Lieutenant George Smith. The officers were on posts at Kennedy Plaza
that afternoon. 	Their mission, as they understood it, was to address “quality of life
problems in Kennedy Plaza.” 	(ECF No. 55-1 at 18.) 	Specifically, the officers were
instructed to “disperse subjects loitering in front of area businesses and committing
other city ordinance violations or crimes.” 	(ECF No. 55-3 at 9.) 	Prior to their
encounter with Ms. Kurland, Officers Abenante, and Richards had been patrolling
the Kennedy Plaza area and had ordered several individuals to leave spaces in front
of businesses, including the CVS.
After a brief conversation with a woman who explained that two officers near
the entrance to CVS, later determined to be Officers Abenante and Richards, had
ordered her to move, Ms. Kurland decided to take up a position on the sidewalk to the
right of the store’s entrance. 	The precise position that Ms. Kurland took, which is
1 The facts in the Introduction are drawn from the parties’ Statements of Undisputed Facts, with
disputes noted where they appear. (
See ECF Nos. 55, 58 & 59.)
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integral to this action, remains in dispute. 	Ms. Kurland stood somewhere near the
CVS entrance against the wall, lit a cigarette, and smiled at Officers Abenante and
Richards standing nearby. Less than a minute later, Officer Abenante told her that
she was not allowed to stand there, that she was obstructing the entrance, and that
she ought to move. 	Ms. Kurland refused to comply, asserting that she was legally
allowed to stand where she was standing. 	At some point during the ensuing
discussion, Ms. Kurland acquiesced and moved from her initial position to the
curbside of the sidewalk.
The 	dialogue 	between 	Ms. 	Kurland 	and 	Officer 	Abenante 	attracted 	the
attention of individuals nearby, and a crowd began to gather on the curbside of the
sidewalk near the entrance to the CVS. 	It remains disputed whether Ms. Kurland
called for people to gather, or whether the spectacular nature of the encounter
independently drew the crowd around her. In any event, Ms. Kurland continued her
conversation with Officer Abenante, Officer Richards, and the group. 	Officer
Abenante accused the group of obstruction, accused certain individuals of disorderly
conduct, and asserted that he was empowered to order the group to move. 	Ms.
Kurland cited case and statutory law to the officers that she believed supported the
group’s right to remain in their position without interference, focusing on the case
State of Rhode Island v. McKenna, 415 A.2d 729 (R.I. 1980) and § 16-13(c) of the
Providence City Code of Ordinances. During this exchange, Officer Abenante called
his supervisor, Lieutenant Smith, to help resolve the situation.
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Lieutenant Smith was already in the Kennedy Plaza area when he received
the call from Officer Abenante. Coincidentally, Lieutenant Smith was in the area to
meet with a local business owner and the director of the Downtown Improvement
District 	to 	discuss 	complaints 	about 	homeless 	individuals 	loitering 	near 	area
businesses. 	Because Lieutenant Smith was nearby, he arrived on the scene within
minutes.
After briefly speaking with Officers Abenante and Richards, Lieutenant Smith
decided that Ms. Kurland and the group were obstructing the CVS and asked Ms.
Kurland to move. Ms. Kurland refused, asserting that there was sufficient space on
the sidewalk for customers to enter and exit the store. Lieutenant Smith then entered
the CVS to speak with the store’s manager. After obtaining a witness statement from
the manager, Lieutenant Smith decided to proceed with an arrest of Ms. Kurland.
Lieutenant Smith informed Ms. Kurland that she would be arrested and that she
would be charged with “failure to move.” 	(ECF No. 55 at 10.)Soon after, she was
placed in handcuffs and transported to the Providence Public Safety Complex.
Ms. Kurland was ultimately charged with obstruction of a police officer under
R.I.G.L. § 11-32-1, vandalism by obstruction of a business under R.I.G.L. § 11-44-1,
disorderly conduct (“violent, tumultuous behavior”) under R.I.G.L. § 11-45-1(a)(1),
and disorderly conduct (“obstruction of a street or sidewalk”) under R.I.G.L. § 11-45-
1(a)(4). 	Ms. Kurland was held in custody for three hours. 	After her release, she
remained under conditions of restricted liberty, unable to leave the state without
permission from a Rhode Island Superior Court judge, from the date of her arrest
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until the disposition of her case, without a conviction, more than nine months later.
Ms. 	Kurland 	now 	sues 	Lieutenant 	Smith, 	Officer 	Abenante, 	Officer 	Richards,
Providence Police Chief Hugh T. Clements, Providence Public Safety Commissioner
Steven M. Paré, and the City of Providence alleging that that she was seized and
prosecuted without probable cause and in violation of her constitutional rights.
II. 	JURISDICTION AND STANDARD OF REVIEW
This Court has federal-question jurisdiction over this matter pursuant to 28
U.S.C. § 1331. Ms. Kurland seeks damages under 42 U.S.C. § 1983 alleging violations
of her civil rights by state officials. “Almost by definition, a claim under § 1983 arises
under federal law and will support federal-question jurisdiction [under § 1331.]”
Loc.
Union No. 12004, United Steelworkers v. Massachusetts, 377 F.3d 64, 75 (1st Cir.
2004). 	The Court exercises supplemental jurisdiction over Ms. Kurland’s state-law
claims pursuant to 28 U.S.C. § 1367, as the state and federal-law claims arise from
“a common nucleus of operative fact.”
Corrigan v. R.I. Dept. of Bus. Reg., 820 F. Supp.
647, 664–65 (D.R.I.1993) (quoting
United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 725 (1966)).
The parties have moved for Summary Judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure. 	Summary judgment’s role in civil litigation is “to
pierce the pleadings and to assess the proof in order to see whether there is a genuine
need for trial.”
	Garside v. Osco Drug Inc., 895 F.2d 4. 50 (1st Cir. 1990). Summary
judgment 	can 	be 	granted 	only 	when 	“the 	pleadings, 	depositions, 	answers 	to
interrogatories, and admissions on file, together with the affidavits, if any, show there
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is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56. “A dispute is genuine if the evidence
about the fact is such that a reasonable jury could resolve the point in the favor of the
non-moving party. 	A fact is material if it carries with it the potential to affect the
outcome of the suit under the applicable law.”
	Santiago–Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting
Sanchez v. Alvarado, 101 F.3d
223, 227 (1st Cir. 1996)). 	The court views the facts at summary judgment “in the
light most favorable to, and drawing all reasonable inferences in favor of, the
nonmoving party.”
	Feliciano de la Cruz v. El Conquistador Resort & Country
Club, 218 F.3d 1, 5 (1st Cir. 2000) (citing
Mulero–Rodriguez v. Ponte, Inc., 98 F.3d
670, 672 (1st Cir. 1996)).
III. 	DISCUSSION
While there are intricacies to attend to, the core of this lawsuit can be distilled
to a single dispute: whether there was probable cause to believe that Ms. Kurland
was obstructing the sidewalk, the CVS, or police officers in the commission of their
duties. 	The defendants allege that Ms. Kurland was blocking the entrance to a
business and encouraging others to do the same. Ms. Kurland asserts that she was
not impeding the free flow of pedestrian traffic and alleges that the defendants
unreasonably seized her and unlawfully restricted her freedom of speech.
The case presents a conflict between an individual’s right to stand on a public
sidewalk and the government’s interest in maintaining free passage through public
spaces. Within this conflict lies an implicit question about the limits of government
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authority to disperse persons occupying public space, particularly those public spaces
where the presence of “so-called undesirable” individuals is believed to harm public
safety or commerce.
	See Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)
(striking down an anti-loitering ordinance as unconstitutionally vague).
Under similar circumstances, the Supreme Court has recognized that the
Constitution rejects any “regime in which the poor and the unpopular are permitted
to ‘stand on a public sidewalk … only at the whim of any police officer.’”
Papachristou,
405 U.S. at 170 (quoting
Shuttlesworth v. Birmingham, 382 U.S. 87, 90 (1965)). The
liberty to “loaf[] or loiter[]” in public space is “historically part of the amenities of life
as we have known them.”
	Id. at 164. Together with the First Amendment, “[t]hese
unwritten amenities have been in part responsible for giving our people the feeling of
independence and self-confidence, the feeling of creativity…[and] have encouraged
lives of high spirits rather than hushed, suffocating silence.”
	Id. 	Any government
scheme that intrudes upon this “freedom to loiter for innocent purposes” invites
discrimination and abuse and should be regarded with constitutional suspicion.
See
City of Chicago v. Morales, 527 U.S. 41, 53 (1999) (plurality opinion) (recognizing a
fundamental right to “remain in a public place of [one’s] choice”).
That said, while the liberty to idly linger in public space without government
intrusion has been recognized by the Court, a person who blocks the free passage of
others on a street or sidewalk can be asked to move.
	Shuttlesworth, 382 U.S. at 92.
And police can make arrests on probable cause that a crime has been committed in
their presence, even if the criminal offense is minor.
	Atwater v. City of Lago Vista,
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532 U.S. 318, 326 (2001);
see also Terry v. Ohio, 392 U.S. 1, 14 (1968) (detentions that
stop short of arrest require reasonable suspicion). The question becomes: was there
cause to believe Ms. Kurland obstructed the CVS or otherwise committed a crime in
the officers’ presence? 	At this stage, that question cannot be answered. 	Because
material facts about Ms. Kurland’s arrest are genuinely disputed, summary judgment
of Ms. Kurland’s federal-constitutional claims is not appropriate for Ms. Kurland or
most of the defendants.
A. 	Lieutenant Smith, Officer Abenante, and Officer Richards
1. 	Unconstitutional Seizure and Common Law False Arrest
The Fourth Amendment protects “[t]he right of people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. 	IV. 	Because arrests are seizures of persons, they must be
reasonable under the circumstances.
	See D.C. v. Wesby, 583 U.S. 48, 56 (2018). 	A
warrantless arrest is reasonable if the officers have probable cause to believe that the
suspect committed a crime in the officers’ presence.
	Atwater, 532 U.S. at 354.
Probable cause exists where “at the moment of the arrest, the facts and circumstances
within 	the 	[officers’] 	knowledge 	and 	of 	which 	they 	had 	reasonably 	reliable
information were adequate to warrant a prudent person in believing that the object
of his suspicions had perpetrated or was poised to perpetrate an offense.”
Roche v.
John Hancock Mut. Life Ins. Co., 81 F.3d 249, 254 (1st Cir. 1996). Police conduct that
stops short of arrest which nevertheless “by means of physical force or show of
authority … in some way restrain[s] the liberty of a citizen” also effects a seizure
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subject to Fourth Amendment scrutiny.
	Terry, 392 U.S. at 19 n. 16. 	A seizure
stopping short of arrest must be supported by reasonable suspicion that “criminal
activity may be afoot.”
Id. at 31.
a. 	The Seizure of Ms. Kurland
Ms. Kurland claims that Officer Abenante, Officer Richards, and Lieutenant
Smith unreasonably seized and falsely arrested her during the Kennedy Plaza
encounter. Officers Abenante and Richards counter that even if Ms. Kurland’s arrest
were unreasonable, only Lieutenant Smith may be held liable when “neither of them
arrested the plaintiff or directed that she be arrested.” 	(ECF No. 56-1 at 5.) 	The
officers contend that Ms. Kurland was always free to leave right up to the point that
Lieutenant Smith formally informed her that she was under arrest, and they argue
that it follows as a matter of law that they cannot be liable for unreasonable seizure
or false arrest.
	Id. (citing
United States v. Mendenhall, 446 U.S. 544, 545 (1980) (a
seizure occurs when “a reasonable person would have believed that he was not free
to leave”)).
Ms. Kurland does not genuinely dispute that she felt free to leave until
Lieutenant Smith’s arrival on the scene. 	But the crux of the conflict in this case is
that Ms. Kurland
did not want to leave. Ms. Kurland was subject to orders to move
which she believed were unlawful, and she felt that agreeing to those orders would
result in the “trampling of her First and Fourth Amendment rights.” (ECF No. 66 at
54.) When a person has no desire to leave the scene of an encounter with police, “the
degree to which a reasonable person would feel he or she could leave is not an accurate
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measure of the coercive effect of the encounter.”
Florida v. Bostick, 501 U.S. 429, 435-
36 (1991). 	“In such a situation, the appropriate inquiry is whether a reasonable
person would feel free to decline the officers’ requests or otherwise terminate the
encounter.”
	Id. 	The “crucial test is whether, taking into account all of the
circumstances 	surrounding 	the 	encounter, 	the 	police 	conduct 	would 	‘have
communicated to a reasonable person that he was not at liberty to ignore the police
presence and go about his business.’”
Id. at 437 (quoting
Michigan v. Chesternut, 486
U.S. 567, 568 (1988)).
Taking the facts in the light most favorable to Ms. Kurland, a reasonable jury
could conclude that the officers’ conduct before the arrival of Lieutenant Smith would
have communicated to a reasonable person that she could not ignore the police
presence and go about her business. “[O]f course, officers may generally take actions
that a private citizen might do without fear of liability,” such as consensually
requesting that a person move.
	Caniglia v. Strom, 141 S. Ct. 1596, 1599 (2021).
However, Ms. Kurland contends that Officers Abenante and Richards ordered her to
move from in front of the CVS under threat of arrest. 	A jury could find that a
reasonable person in Ms. Kurland’s shoes would not have felt free to go about her
business and ignore that order. 	And Ms. Kurland did not ignore the order; she
yielded; she moved.
	See California v. Hodari D., 499 U.S. 621, 626 (1991) (“with
respect to a show of authority,” a seizure occurs when the subject yields). 	On these
facts, a reasonable jury could find that Officers Abenante and Richards independently
seized Ms. Kurland by ordering her to move before the later seizure involving
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Lieutenant Smith.
Id. at 625 (“[a] seizure is a single act, and not a continuous fact”);
see also Brendlin v. California, 551 U.S. 249, 255 (2007) (recognizing that a seizure
can occur even where the restraint of movement “[is] quite brief’”);
	Kernats v.
O'Sullivan, 35 F.3d 1171, 1177 (7th Cir. 1994) (recognizing that an order to move can
be a seizure and admonishing the district court for its failure to address the plaintiffs’
argument “that they were seized because … they were not free to remain”);
Bennett
v. City of Eastpointe, 410 F.3d 810, 833 (6th Cir. 2005) (reasoning that a seizure
occurs “when a reasonable person would not feel free to remain somewhere, by virtue
of some official action” and holding that an order to move effected a seizure);
Kurland
v. City of Providence, No. 1:14-CV-524-MSM-PAS, 2020 WL 5821091, at *9 (D.R.I.
Sept. 30, 2020) (“A seizure does occur when police assert authority in directing a
person's movement, and the person acquiesces to that authority.”).
A jury could also find that Officers Abenante and Richards’ conduct renders
them liable for the later seizure of Ms. Kurland involving Lieutenant Smith. 	That
Officers Abenante and Richards did not physically apprehend Ms. Kurland or direct
another to do so is not dispositive. 	“When the defendants act together, the law
permits the injured party to treat all concerned in the injury jointly; and all are liable
to the plaintiff in a total sum of damages.”
	Hall v. Ochs, 817 F.2d 920, 926 (1st Cir.
1987). This general statement about joint liability provides “the correct statement of
joint liability under § 1983.”
Id.;
see also Sanchez v. Pereira-Castillo, 590 F.3d 31, 50
(1st Cir.2009) (“We employ common law tort principles when conducting inquiries
into causation under § 1983.”).
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Although Lieutenant Smith ultimately ordered Ms. Kurland’s arrest, Officers
Abenante and Richards initiated the encounter with Ms. Kurland. 	Moreover,
Lieutenant Smith’s later presence is attributable to the officers, who called the
Lieutenant requesting assistance in addressing Ms. Kurland’s conduct. Upon arrival,
Lieutenant Smith talked to both officers, which contributed to his determination to
make an arrest. And ultimately, Abenante, Richards, and Smith collectively charged
Ms. Kurland with obstruction of an officer and the obstruction of lawful business
pursuits. 	(ECF No. 59-13 at 59.) 	They are all listed as arresting officers on the
incident report.
Id. That Officers Abenante and Richards were neither the ultimate
decisionmakers nor the actual arresting officers does not mean they cannot be liable
for the arrest—the officers were active participants in Ms. Kurland’s arrest who may
be jointly liable.
See Santiago v. Fenton, 891 F.2d 373, 387 (1st Cir. 1989).
Because a reasonable jury could find that Officers Abenante and Richards
independently seized Ms. Kurland and were joint actors in her ultimate arrest,
summary judgment cannot be granted for Officers Abenante and Richards on the
theory that they did not participate in the arrest.
b. 	Reasonableness
For Ms. Kurland’s unreasonable seizure and false arrest claims to succeed, she
must show not only that she was seized, but also that the seizure was unreasonable.
Brower v. Cnty. of Inyo, 489 U.S. 593, 599 (1989);
see also Dyson v. City of Pawtucket,
670 A.2d 233, 238 (R.I. 1996) (explaining that an action of false arrest is proper
“[w]henver a person unlawfully obstructs or deprives another of his freedom to choose
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his location, for however brief a period”). Ms. Kurland was ultimately charged with
a suite of offenses: obstruction of a police officer, vandalism via obstruction of a
business, disorderly conduct (“violent, tumultuous behavior”), and disorderly conduct
(“obstruction of a street or sidewalk”). 	If the officers reasonably suspected that Ms.
Kurland was committing any of these offenses, or any other crime, then the alleged
seizure of Ms. Kurland prior to her arrest was reasonable.
Terry, 392 U.S. at 31. And
if the officers had probable cause to arrest Ms. Kurland on even one of these charges—
or for any other crime—then her ultimate arrest was also reasonable.
	Devenpeck v.
Alford, 543 U.S. 146, 153 (2004). 	However, because it remains genuinely disputed
whether 	there 	was 	cause 	to 	believe 	Ms. 	Kurland 	committed 	any 	crime, 	the
reasonableness of the alleged seizures is a question for the jury.
The officers and Lieutenant Smith argue that undisputed facts establish Ms.
Kurland obstructed officers in the commission of their duties in violation of R.I.G.L.
§ 11-32-1. 	That statute makes it a crime to “obstruct any officer … while in the
execution of his or her office or duty.” 	§ 11-32-1. Defendants suggest that § 11-32-1
empowers police to arrest any individual who hinders any officers’ “expeditious and
efficient” commission of their duties, even where the hindrance presented “involve[s]
alleged 	protected 	speech.” 	(ECF 	No. 	56 	at 	8.) 	The 	defendants 	base 	their
interpretation of the statute on the principle that “the proper place to challenge the
constitutionally of a law or regulation is in the courts, not on the streets.”
	Id. at 9.
They argue that Ms. Kurland’s sidewalk lecture unlawfully hindered the commission
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of their official duties because it distracted them, attracted a crowd, and undermined
their authority.
Id.
While the Court recognizes that in certain extreme circumstances, a “verbal
harangue [may be] so staged and of such length and so disconcerting in character”
that it does in fact constitute obstruction of an officer, it remains genuinely disputed
whether Ms. Kurland’s speech was of that nature.
See Johnson v. Palange, 406 A.2d
360, 366 (R.I. 1979).
The Officers and Lieutenant Smith also argue that undisputed facts establish
Ms. Kurland obstructed another’s lawful business, CVS, in violation of R.I.G.L. §
11-44-1. 	That 	statute 	makes 	it 	a 	crime 	to 	“willfully 	and 	maliciously 	or
mischievously … obstruct another in the prosecution of his or her lawful business or
pursuits, in any manner.” 	§ 11-44-1. 	The defendants argue that Ms. Kurland’s
“actions, right, wrong, or indifferent, interfered with the officers’ ability to clear the
entranceway area,” and that, as such, Ms. Kurland unlawfully obstructed the CVS.
(ECF No. 56 at 10.) 	In addition to her dissenting speech, the defendants note that
Ms. Kurland’s conduct attracted a crowd near the CVS—a crowd which the defense
asserts prevented others from entering the store.
Id.
Again, it remains genuinely disputed whether Ms. Kurland’s speech was “so
staged and of such length and so disconcerting in character” as to constitute
obstruction of the CVS.
	See Johnson¸ 122 R.I. at 371. 	And it remains disputed
whether Ms. Kurland conducted herself with the requisite mens rea of willful malice
necessary for a charge to adhere under § 11-44-1.
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Finally, Defendants claim that there was cause to seize Ms. Kurland for
disorderly conduct under § 11-45-1. 	That statute makes it a crime to intentionally,
knowingly, or recklessly “engage in … violent or tumultuous behavior,” or to “[a]lone
or with others, obstruct[] a … sidewalk.” § 11-45-1(a)(1); § 11-45-1(a)(4). Because it
remains disputed where Ms. Kurland, and later the group, actually stood, it also
remains disputed whether there was reason to believe that Ms. Kurland, alone or
with others, actually obstructed the sidewalk under § 11-45-1(a)(4) or under the
related City Ordinance 16-13. 	Similarly, because Ms. Kurland’s precise conduct
during the encounter with the officers remains disputed, it remains disputed whether
there was cause to believe Ms. Kurland engaged in violent or tumultuous behavior.
Put simply, there are disputes about material facts that will establish whether
or not the Officers and Lieutenant Smith had cause to seize or arrest Ms. Kurland.
The defendants’ Motions for Summary Judgment of the unreasonable seizure and
false arrest claims are DENIED. 	For the same reasons, the plaintiff’s Motion for
Summary Judgment is DENIED.
2. 	Unconstitutional 	Impairment 	of 	Freedom 	of 	Assembly 	and
Speech
Along with her Fourth Amendment claim, Ms. Kurland alleges that her First
Amendment freedom of speech was unlawfully restricted by the defendants. 	Ms.
Kurland asserts that she was ordered to move and subsequently arrested without
probable cause while engaging in political speech on matters of public concern.
Specifically, Ms. Kurland claims that she was arrested in part for challenging and
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dissenting from illegal police action. 	The defendant officers counter that the facts
alleged 	by 	Ms. 	Kurland 	“invoke 	Fourth 	Amendment 	protections, 	not 	First
Amendment,” because “Ms. Kurland spoke for as long as she wanted … [and] [n]one
of her speech was squelched or suppressed in any manner.” (ECF No. 56 at 5.)
Freedom of speech is a fundamental personal right that lies at the foundation
of free government.
	Schneider v. State of New Jersey, Town of Irvington, 308 U.S.
147, 161 (1939). 	“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, 482 U.S. at 462–
63. 	Accordingly, the Constitution demands restraint from police officers in the face
of “provocative and challenging” speech.
	Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir.
2011). 	Such provocative and challenging speech is generally protected against
censorship or punishment, unless it is shown that it is “likely to produce a clear and
present danger of a serious substantive evil that rises far above public inconvenience,
annoyance, or unrest.”
Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949).
The 	Supreme 	Court 	instructs 	courts 	to 	employ 	a 	three-step 	inquiry 	to
determine whether a speech restriction violates the First Amendment.
	Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). 	First, the Court
must determine whether the speech is protected by the First Amendment.
Id. If the
speech is protected, the Court must then determine whether the complained-of speech
restriction occurred in a “public or non-public” forum.
	Id. 	Depending on the forum
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type, the Court must then apply the appropriate level of scrutiny to determine
whether the restriction violates the Constitution.
Id.
a. 	Ms. Kurland’s Protected Speech
Ms. Kurland alleges that her political speech on matters of public concern was
restricted. 	“‘[S]peech on public issues occupies the highest rung of the hierarchy of
First Amendment values and is entitled to special protection.’”
Snyder v. Phelps, 562
U.S. 443, 452 (2011) (quoting
Connick v. Myers, 461 U.S. 138, 145 (1983)). 	“Speech
deals with matters of public concern when it can ‘be fairly considered as relating to
any matter of political, social, or other concern to the community.’”
Id.
Ms. Kurland contends that she was “recit[ing] case law and constitutional law
principles” to members of Providence’s homeless community when she was engaged
and subsequently arrested by the Officers. 	(ECF No. 56 at 2.) 	Speech does not get
more political than that.
	See McCullen v. Coakley, 573 U.S. 464, 476 (2014). While
the defendants contend that Ms. Kurland’s speech was more threatening than
instructive, there is a genuine dispute over whether Ms. Kurland’s speech was
protected.
	Id. 	And her alleged protected speech was restricted: she was ordered to
move and subsequently arrested while engaged in its expression.
See Glick, 655 F.3d
at 84.
b. 	The Public Forum
The sidewalk where Ms. Kurland proselytized was plainly a public forum.
See
United States v. Grace, 461 U.S. 171, 179 (1983) (“Sidewalks … are clearly within
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those areas of public property that may be considered, generally without further
inquiry, to be public forum property.”).
c. 	The Restriction on Ms. Kurland’s Speech
The seizure of a person engaged in expression implicates both First and Fourth
Amendment protections when the seizure restricts the subject’s speech.
	See, e.g.,
Glick, 655 F.3d at 84 (the unlawful arrest of a bystander recording a police encounter
was an unconstitutional speech restraint). 	When political speech in a public forum
is alleged to be restricted, the level of scrutiny which the Court applies depends on
whether the restriction was content neutral or content based.
See McCullen, 573 U.S.
at 478. 	A content-based restriction is unlawful unless it “serves a compelling
governmental interest by the least restrictive means.”
	Id. 	Restrictions which are
content neutral, on the other hand, are unlawful unless “they are narrowly tailored
to serve a significant governmental interest” while “leav[ing] open ample alternative
channels for communication of the information.”
	Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989).
The principal inquiry in determining a restriction’s content neutrality is
whether the government restricted speech because of disagreement with the message
it conveys.
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 295 (1984). “The
government’s purpose [for the restriction] is the controlling consideration.”
	Rock
Against Racism, 491 U.S. at 791. 	A restriction of expressive activity is content
neutral so long as the government can “justif[y] [the restriction] without reference to
the content of the regulated speech.”
Id.
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Ms. Kurland asserts that the restriction on her speech was content based. In
support of this allegation, Ms. Kurland points out that: (1) video evidence and sworn
testimony show that the sidewalk was not obstructed, (2) Ms. Kurland was the only
person arrested for obstruction, and (3) the defendant officers testified that they did
not address commands to other individuals at the scene because they believed that
Ms. Kurland’s specific statements were the problem. 	(ECF No. 60 at 33.) 	For
example, Ms. Kurland highlights Officer Abenante’s sworn testimony that he called
Lieutenant Smith to the scene in part because Ms. Kurland “was reciting some case
law where somebody told a cop he can shoot them in the head.” 	(ECF No. 59 at 14);
see McKenna, 415 A.2d at 730. On these facts, a reasonable jury could find that the
restriction on Ms. Kurland’s expression was content based. Because a content-based
restriction is presumptively unconstitutional, summary judgment is not appropriate
for the defendants.
Even if a jury did not find that the restriction of Ms. Kurland’s speech was
content based, a reasonable jury could find that the restriction fails to meet the
intermediate standard of scrutiny applied to content-neutral restrictions. 	A jury
could find that there was no obstruction, and thus that the government interest
served by the restriction was nonexistent. The defendants’ motion is DENIED.
Ms. Kurland’s motion is also DENIED because a reasonable jury could find
that the instructions for Ms. Kurland to move and her subsequent arrest were not
motivated by the content of her speech but because she obstructed the CVS or
otherwise committed a crime.
	See Nieves v. Bartlett, 139 S. Ct. 1715, 1733 (2019)
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(probable cause for arrest defeats a § 1983 First Amendment retaliatory arrest claim
unless the plaintiff can show that “otherwise similarly situated individuals” whose
speech differed were not arrested).
3. 	Constitutional and Common Law Malicious Prosecution
Ms. Kurland asserts that Officer Abenante, Officer Richards, and Lieutenant
Smith maliciously prosecuted her and sues under constitutional and common law.
The elements of a constitutional and common law malicious prosecution claim are
similar but not identical.
See Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99 (1st Cir.
2013). 	A plaintiff can establish a constitutional malicious prosecution claim under
§ 1983 if she can show that the defendants “(1) caused (2) a seizure of the plaintiff
pursuant 	to 	legal 	process 	unsupported 	by 	probable 	cause, 	and 	(3) 	criminal
proceedings terminated in plaintiff's favor.”
	Id. at 100–01. A plaintiff can establish
a malicious prosecution claim under Rhode Island law if she can show that the
defendants “(1) initiated a criminal proceeding against [her]; (2)
with malice; (3) and
without probable cause; which (4) terminated in plaintiff's favor.”
Solitro v. Moffatt,
523 A.2d 858, 861–62 (R.I. 1987) (emphasis added);
Nagy v. McBurney, 392 A.2d 365,
367 (1978). 	These approaches are “largely identical with one caveat.”
	Hernandez-
Cuevas, 723 F.3d at 99. 	While a plaintiff alleging a constitutional claim need only
establish that her seizure was unsupported by probable cause, a plaintiff alleging a
common law claim must also show that the defendant officer acted with subjective
malice.
	Id. 	Additionally, a common law plaintiff must establish the elements of
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malice and lack of probable cause by “clear proof.”
	Powers v. Carvalho, 368 A.2d
1242, 1246 (R.I. 1977).
The malice element is less significant than it first appears in distinguishing
the constitutional and common law malicious prosecution torts. Under Rhode Island
law, malice may be inferred from proof that prosecution was instituted without
probable cause.
See, e.g.,
Nagy, 392 A.2d at 367 (“Proof of actual ill will, however, is
not a sine qua non, for a hostile motive may also be inferred from a showing of a lack
of probable cause.”). Thus, if a reasonable jury could find that the officers caused the
seizure of Ms. Kurland pursuant to legal process unsupported by probable cause, then
a reasonable jury could also infer that the officers acted with subjective malice.
See,
e.g.,
Costa v. Rasch, No. CV 11-336L, 2014 WL 12803016, at *6 (D.R.I. July 29, 2014)
(“The third element – maliciousness – may be subsumed by the second; that is, malice
may be inferred from proof that the prosecution was instituted without probable
cause.”). Therefore, the court will consider the constitutional and common law
malicious prosecution claims together.
a. 	Causation & Initiation
As a threshold argument, the officers and Lieutenant Smith contend that they
cannot be liable for malicious prosecution because “none of them prosecuted the
plaintiff.” 	(ECF No. 56 at 13.) 	That argument fails because “prosecut[ing] the
plaintiff” is not an element of the tort.
See Hernandez-Cuevas, 723 F.3d at 99. What
matters is whether the officers and Lieutenant Smith “caused” or “initiated” the
criminal proceedings against Ms. Kurland.
Id.
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To determine whether a police officer “caused” a criminal proceeding under
§ 1983, a court will apply common law tort principles.
	Hernandez-Cuevas, 723 F.3d
at 100. “The requisite causal connection can be established not only by some kind of
direct personal participation in the deprivation, but also by setting in motion a series
of acts by others which the actor knows or reasonably should know would cause others
to inflict the constitutional injury.”
Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553,
561 (1st Cir. 1989). “Even where … a prosecutor retains all discretion to seek an
indictment, police officers may have caused the seizure and remain liable to a
wrongfully indicted defendant.”
Hernandez-Cuevas, 723 F.3d at 100.
To determine whether police officers “initiated” a criminal proceeding under
Rhode Island law, a court will ask whether “the state Attorney General’s office was
free of pressure or influence exerted by the police officers or knowing misstatements
made by the officers.”
	Senra v. Cunningham, 9 F.3d 168, 174 (1st Cir. 1993). 	For
example, 	when 	police 	officers 	have 	lied 	about 	the 	events 	in 	question 	and
communicated that false information to prosecutors, the officers have initiated the
criminal proceedings.
Id.
Ms. Kurland alleges that Officer Richards, Officer Abenante, and Lieutenant
Smith filed a police report that was “at the very least misleading and more likely
intentionally false.” (ECF No. 60 at 55.) In support of this allegation, Ms. Kurland
points to discrepancies between the police report, the video evidence of the arrest,
and the officers’ deposition testimony.
	Id. 	Ms. Kurland also alleges that Officer
Abenante made misleading statements to Attorney General Arthur DeFelice over the
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phone.
	Id. 	In support of this claim, Ms. Kurland points to contradictions between
the officer’s deposition testimony and Attorney General DeFelice’s notes of the call.
Id. 	Based on this evidence, a reasonable jury could find that the officers lied to or
misled prosecutors about their encounter with Ms. Kurland, which is sufficient to
meet the causation element of both the constitutional and common law claim.
b. 	The Presence of Probable Cause
The next requirement of both the constitutional and common law tort is that
the criminal proceedings be without probable cause. 	For the reasons provided in the
discussion of the alleged seizure and arrest of Ms. Kurland, a reasonable jury could
find that the criminal proceedings against her were initiated without probable cause.
There is also sufficient evidence for a reasonable jury to infer malice if they find a
lack of probable cause.
See Nagy, 392 A.2d at 367.
c. 	The Termination of Proceedings in Ms. Kurland’s Favor
The final requirement of a constitutional or common law malicious prosecution
claim is that the criminal proceedings terminated in the plaintiff’s favor. 	A trial of
the action on the merits is not required to establish a favorable termination. 	“To
demonstrate a favorable termination of a criminal prosecution for purposes of the
Fourth Amendment claim under § 1983 for malicious prosecution, a plaintiff need
only show that his prosecution ended without a conviction.”
Thompson v. Clark, 142
S. Ct. 1332, 1335 (2022). 	Similarly, under Rhode Island law, “the dismissal of the
proceedings complained of, either voluntarily or by reason of a failure to prosecute,
followed by the discharge of accused, is in general sufficient termination thereof to
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support the action of malicious prosecution.”
Moreau v. Picard, 169 A. 920, 921 (R.I.
1934). 	The reason for the rule as stated is that: “To require a trial of the action on
the merits resulting in an acquittal would be to permit a prosecutor to do all the
damage which a malicious prosecution can possibly effect, and then deny the accused
the opportunity to vindicate himself by a trial, by having the proceeding quashed or
dismissed, and thus escaping all liability for the wrong unlawfully inflicted.”
Id.
The charges against Ms. Kurland were disposed on a not guilty filing on all
counts. 	Because the proceedings against Ms. Kurland were disposed of and Ms.
Kurland was discharged without a conviction, the proceedings against Ms. Kurland
were favorably terminated for purposes of the constitutional and common law tort.
For these reasons, the defendants’ Motions for Summary Judgment of the
malicious prosecution claims are DENIED. 	Ms. Kurland’s motion is also DENIED,
as there remains a genuine dispute over whether the officers had probable cause to
initiate the criminal proceedings in the first instance.
B. 	Direct Causes of Action Under the Rhode Island Constitution
Ms. Kurland brings three counts as direct causes of action under the Rhode
Island Constitution alleging violations of her state constitutional rights: impairment
of freedom of assembly and speech in violation of Article 1, § 21 of the Rhode Island
Constitution (Count II), violation of the right to freedom from unreasonable search
and seizure in violation of Article 1, § 6 of the Rhode Island Constitution (Count IV),
and malicious prosecution in violation of Article 1, § § 2, 6 and 7 of the Rhode Island
Constitution (Count VI). 	Looking to and deferring to Rhode Island state law, the
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Court finds that Ms. Kurland does not have a private cause of action for the alleged
violations under the Rhode Island Constitution.
The 	Rhode 	Island 	Supreme 	Court 	has 	consistently 	held 	that 	state
constitutional provisions do not create a private cause of action without legislative
action.
	See, e.g.,
Folan v. State Dep't of Child., Youth, and Families, 723 A.2d 287,
292 (R.I. 1999) (Article 1, § 2, anti-discrimination clause);
Doe v. Brown Univ., 253
A.3d 389, 401 (R.I. 2021) (Article 1, § 2, due process clause);
Felkner v. R. I. Coll., 203
A.3d 433, 447 (R.I. 2019) (Article 1, § 21, freedom of speech and right to assemble).
The Rhode Island Legislature has not acted to create a private cause of action to
redress violations of Article 1, § § 2, 6, 7, or 21 of the state constitution. Ms. Kurland
relies on
Jones v. State of Rhode Island, 724 F. Supp. 25, 34-36 (D.R.I. 1989) to assert
that an implied cause of action exists stemming from the provisions of rights
themselves, but her reliance on the case is misplaced.
At the time
Jones was decided in 1989, there was no definitive statement from
the Rhode Island Supreme Court on whether the Court recognized private causes of
action under the Rhode Island Constitution. 	The decision in
Jones was simply an
attempt to predict how the state’s highest court would rule on the narrow question
presented, whether a cause of action under Article 1, § 2 of the Rhode Island
Constitution exists. “A ‘federal court may attempt to predict how [a] state's highest
court would rule on [an] issue in a pending federal case,’ based upon existing state
law or ‘better reasoned authorities’ from other jurisdictions.”
Mullowney v. USAA
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Cas. Ins. Co., No. CV 22-404 WES, 2023 WL 4198665, at *2 (D.R.I. June 27, 2023)
(quoting
Lieberman-Sack v. HCHP-NE, 882 F. Supp. 249, 254 (D.R.I. 1995)).
The
Jones court relied on Supreme Court authority,
Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971), to conclude that an implied cause of
action for an alleged violation of the due process clause of Article 1, § 2 of the Rhode
Island Constitution exists.
	Jones, 724 F. Supp. 25 at 35. 	In
Bivens, the Supreme
Court had recognized the existence of an implied right to sue federal officials in
federal court based on violations of the Fourth Amendment of the U.S. Constitution.
Bivens, 403 U.S. 388 at 396. 	The
Jones court invoked a “
Bivens-like analysis,” to
conclude that there is an analogous implied right to sue under Article 1, § 2 of the
Rhode Island Constitution. 724 F. Supp. 25 at 35. But
Jones was not the final word.
In the years since
Jones was decided, the Rhode Island Supreme Court has
provided a clear statement on the issue, a statement which governs our decision
today. 	Since
Jones, the Rhode Island Supreme Court has repeatedly expressed
reluctance to “create a new cause of action” by judicial interpretation rather than
legislative enactment and has expressly refused to recognize implied causes of action
under Article 1.
	See, e.g.,
Doe, 253 A.3d at 401;
Felkner, 203 A.3d at 447. 	These
decisions control: Ms. Kurland’s claims are not actionable under Article 1, § § 2, 6, 7,
or 21 of the Rhode Island Constitution.
See also Bandoni v. State, 715 A.2d 580, 587
(R.I. 1998) (articulating a general averseness to implied causes of action).
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Because Ms. Kurland may not maintain a private cause of action for violations
of Article 1, § § 2, 6, 7, or 21 of the Rhode Island Constitution, all Defendants’ Motions
for Summary Judgment are GRANTED as to Counts II, IV, and VI.
C. 	Supervisory Liability
In 	addition 	to 	the 	officers 	and 	Lieutenant 	Smith, 	Ms. 	Kurland 	sues
Providence’s then Chief of Police, Hugh T. Clements Jr., and the Commissioner of
Public Safety, Steven Paré—the officers’ supervisors—for damages stemming from
the Kennedy Plaza encounter. Supervisory liability must be based on the supervisor’s
own conduct; the doctrine of
respondeat superior does not apply.
Sanchez v. Pereira-
Castillo, 590 F.3d 31, 49 (1st Cir. 2009). In other words, there must be an “affirmative
link 	between 	the 	behavior 	of 	[the 	officer] 	and 	the 	action 	or 	inaction 	of 	his
supervisor … such that the supervisor’s conduct led inexorably to the constitutional
violation.”
Feliciano-Hernandez, 663 F.3d at 533. At the least, a supervisory official
must have actual or constructive notice of the violation and act deliberately by failing
to resolve it.
Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 768 (1st Cir. 2010).
1. 	Chief Clements
Police Chief Clements testified that at the time of Ms. Kurland’s arrest,
Providence 	Police 	officers 	were 	“routinely” 	telling people 	to move 	from 	public
sidewalks in front of businesses. 	(ECF No. 59-12 at 65.) 	He also testified that he
knew that individuals “were complaining about being told to move along in … public
spaces” when they were not committing illegal acts, and that he knew this alleged
police conduct presented constitutional concerns.
Id. at 91–95. Despite his concerns,
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Chief Clements did not take any specific action to determine whether officers were,
in fact, ordering people to move only if they had committed a criminal act.
Id. at 103.
Considering Chief Clements’ testimony, a reasonable jury could conclude that Chief
Clements made a deliberate decision not to act to resolve a known constitutional
issue, which led to the alleged constitutional violations. 	Defendants’ Motion for
Summary Judgment is DENIED as to the surviving claims against Chief Clements.
Plaintiffs’ motion is also DENIED. The same factual disputes that preclude summary
judgment of Ms. Kurland’s underlying claims preclude summary judgment of Chief
Clements’ liability.
2. 	Commissioner Paré
Ms. Kurland has failed to identify facts that show that Commissioner Paré’s
conduct inexorably led to the alleged constitutional violations. 	The defendants’
motion is GRANTED as to all claims against Commissioner Paré.
D. 	Municipal Liability
Ms. Kurland also sues the City of Providence for the officers’ alleged violations.
Under 42 U.S.C. § 1983, a municipality is liable for harms caused by its employees
when “execution of a government[ ] policy or custom … inflicts the injury.”
Monell v.
N.Y. City Dept. of Social Servs., 436 U.S. 658, 694 (1978). 	To recover from a
municipality, a plaintiff must “demonstrate both the existence of a policy or custom
and a causal link between that policy and the constitutional harm.”
	Santiago v.
Fenton, 891 F.2d 373, 381 (1st Cir. 1989). 	Policies and customs “include[ ] the
decisions of a government's lawmakers, the acts of its policymaking officials, and
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practices so persistent and widespread as to practically have the force of law.”
Connick v. Thompson, 563 U.S. 51, 61 (2011). 	These are “action[s] for which the
municipality is actually responsible.”
Pembaur v. Cincinnati, 475 U.S. 469, 479–480
(1986).
Ms. Kurland contends that the Providence Police Department has a custom or
policy which encourages officers to unlawfully invade the constitutionally protected
right of people to peaceably assemble and exercise other First Amendment rights on
public sidewalks and in other public forums. There is no evidence that the Providence
Police Department promulgated any written or formal policy to this effect. That said,
even in the absence of a formal policy, a custom may be attributable to Providence if
it can be shown that the alleged practice is “so well settled and widespread that the
policymaking officials of the municipality can be said to have either actual or
constructive knowledge of it yet did nothing to end the practice.”
Bordanaro v.
McLeod, 871 F.2d 1151, 1156 (1st Cir.1989).
A reasonable jury could find that a custom of ordering people on public
sidewalks to move without cause exists in the Providence Police Department that
caused a constitutional harm to Ms. Kurland. The deposition testimony of Lieutenant
Smith, Officer Abenante, Officer Richards, and Police Chief Clements shows that the
complained-of conduct in this case arose from a well-settled police department
practice of ordering people to move.
Lieutenant Smith, the District One Commander at the time of Ms. Kurland’s
arrest, testified that around the time of the arrest, the Providence Police were
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routinely 	receiving 	complaints 	from 	businesses 	in 	the 	downtown 	area 	about
individuals standing on the sidewalk near an entrance or exit to a business. 	(ECF
No. 59-7 at 27.) According to his testimony, the Providence Police “were requested by
the business owners … to ask people to move out of the doorways, right or left of the
doorway, to allow businesses to operate.”
Id. In response to these requests, the police
department “would … assign a police officer to that street to ask people to move to
the right or left to allow people to enter and exit the buildings and garages.”
	Id. at
28. 	Notably, the officers’ instructions to move extended beyond people actually
blocking an entrance to include people “in the general area of [an] entrance.”
	Id. at
40. People in a businesses’ general area who were not obstructing a business or doing
anything illegal would still be asked to move, “[i]f the business was asking [the
police].”
Id. at 51. In those cases, officers “would have people move just a little further
down to accommodate both parties.”
Id. at 75.
Officer Abenante testified that when on assignment in Kennedy Plaza, he had
authority to order people “in the general vicinity” of a business to move. 	(ECF No.
59-5 at 57.) 	He added that “general vicinity” ranged from “3 feet from the door [to]
20 feet from the door.”
	Id. at 59. 	While he acknowledged that a person could be
arrested or asked to move only if they were obstructing a business or otherwise
committing a crime, he reasoned that what constitutes obstruction is “dependent on
the factors at hand.”
	Id. According to Officer Abenante, those factors included “the
perception” others might have of the person occupying the sidewalk.
Id. at 48.
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Officer Richards testified that on the date of Ms. Kurland’s arrest, he and
Officer Abenante had instructed up to ten people to move in the 45-minute period
since their arrival in Kennedy Plaza. (ECF No. 59-6 at 57.)
Police Chief Clements does not dispute that he knew about the practice
described by the officers, as noted in the discussion of supervisory liability. The same
awareness that supports supervisory liability for Police Chief Clements also supports
the conclusion that there was an accepted custom of ordering people to move without
cause in the Providence Police Department.
The defendants do not dispute that Chief Clements is a policymaking official,
and, while he only needed constructive knowledge, he has admitted to possessing
actual knowledge of the police department’s complained-of custom. He also failed to
act to end the practice despite complaints that people were being asked to move
without cause. 	Based on these facts drawn from the testimony of the officers,
Lieutenant 	Smith, 	and 	Chief 	Clements, 	a 	reasonable 	jury 	could 	find 	that
policymaking officials failed to end a known custom of moving people on public
sidewalks without cause, which caused the alleged harm to Ms. Kurland. Therefore,
summary judgment of the claims against Providence is not appropriate. Defendants’
motion is DENIED.
Summary judgment is not appropriate for Ms. Kurland either. 	The same
factual disputes that preclude summary judgment of Ms. Kurland’s underlying claims
preclude summary judgment of municipal liability. 	Plaintiff’s motion is DENIED.
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E. 	Sovereign Immunity
Ms. Kurland sues the defendants under § 1983 and state law in both their
official and their individual capacities for violating state law and her civil rights.
§ 1983 provides a federal forum to remedy many deprivations of civil liberties, but it
does 	not 	provide 	a federal 	forum 	for 	litigants 	who 	seek 	a 	remedy 	against 	a
municipality for alleged deprivations of civil rights.
	Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989). 	Section 1983 authorizes suits against ‘persons’ who
invade 	constitutional 	rights, 	and 	the 	Supreme 	Court 	has 	concluded 	that 	a
municipality is not a ‘person’ for purposes of § 1983 liability.
	Id. 	Because a suit
against a municipal official in his or her official capacity is a suit against the
municipality itself, municipal officials may not be sued for damages in their official
capacities under § 1983 either.
Id. 	The defendants’ Motions for Summary Judgment
of all § 1983 claims brought against Providence officials in their official capacities are
GRANTED.
In general, the Eleventh Amendment bars suits against a municipality unless
the municipality has waived its immunity.
	Id. 	Rhode Island has enacted a broad
waiver of sovereign immunity statute; R.I.G.L. § 9-31-1 “subjects the state
and its
political subdivisions to liability in all actions of tort ‘in the same manner as a private
individual or corporation.’”
	Laird v. Chrysler Corp., 460 A.2d 425, 428 (R.I. 1983)
(emphasis added);
see also Graff v. Motta, 695 A.2d 486, 490 (R.I. 1997) (the city of
Warwick was not immune from false arrest and malicious prosecution claims).
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Defendants’ Motions for Summary Judgment of the official capacity, common law
malicious prosecution and false arrest claims are DENIED.
F. 	Qualified Immunity
The defendant officers assert that they are entitled to qualified immunity from
Ms. Kurland’s claims. 	The doctrine of qualified immunity shields both federal and
state officials from liability for damages in a civil rights action “so long as their
conduct ‘does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’”
Mullenix v. Luna, 577 U.S. 7, 11
(2015) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)). 	A right is clearly
established if its contours are “sufficiently clear that every ‘reasonable official would
have understood that what he is doing violates that right.’”
	Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The
defendants contend that police conduct during the Kennedy Plaza encounter did not
violate any clearly established right.
In resolving questions of qualified immunity at summary judgment, courts
engage in a two-element inquiry.
See Tolan v. Cotton, 572 U.S. 650, 655 (2014). First,
the court asks whether the facts “taken in the light most favorable to the party
asserting the injury … show the officer’s conduct violated a federal right.”
Id. If the
facts make out a violation of a federal right, the court asks “whether the right in
question was clearly established at the time of the violation.”
Id.
The discussion above establishes that Ms. Kurland has sufficiently shown a
constitutional violation when all facts are construed in her favor. As such, the court
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moves to the second element, whether the rights violated were clearly established.
The court must ask whether, under the circumstances, Ms. Kurland’s rights to
freedom of speech and to not be seized and prosecuted without cause were sufficiently
clear.
See City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019) (“Under our
cases, the clearly established right must be defined with specificity.”). 	Because
certain facts about the circumstances at hand remain disputed, the court will assess
whether Ms. Kurland’s allegations as modified by the summary judgment record
make out a claim sufficient to overcome qualified immunity before denying a motion
for summary judgment.
	See Est. of Rahim by Rahim v. Doe, 51 F.4th 402, 411 (1st
Cir. 2022).
Taking the record in the light most favorable to Ms. Kurland, a reasonable jury
could conclude that Ms. Kurland was ordered to move and subsequently arrested
without legal basis while engaging in political speech on the sidewalk at a distance
from any business entrance. 	It is well-established that the Fourth Amendment
requires cause to seize and prosecute an individual.
	See, e.g.,
Hayes v. Florida, 470
U.S. 811, 816 (1985) (on arrests);
Kernats, 35 F.3d at 1184 (on orders to move:
granting qualified immunity for the instant case but expressing an unwillingness to
do so in future cases);
Wheeler v. Nesbitt, 65 U.S. 544, 546 (1860) (on malicious
prosecution). 	And it is well-established that one cannot be arrested simply for
protected speech.
	See, e.g.,
Nieves, 139 S. Ct. 1715 at 1722. 	Thus, the defendants
are not entitled to qualified immunity on the facts taken in light most favorable to
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Ms. Kurland. The defendants’ Motion for Summary Judgment of Qualified Immunity
is reserved to be decided after trial based on the jury’s resolution of the disputed facts.
IV. 	CONCLUSION
For the foregoing reasons, the defendants’ Motions for Summary Judgment are
GRANTED as to the claims under the R.I. Constitution (Counts II, IV, and VI) and
the official capacity § 1983 claims; DENIED as to the individual capacity § 1983
claims (Counts I, III, and V) and the common law malicious prosecution and false
arrest claims (Counts VII and VII); and RESERVED as to qualified immunity.
Plaintiff’s Motion for Summary Judgment is DENIED on all counts.
IT IS SO ORDERED.
_________________________________
Mary S. McElroy
United States District Judge
January 8, 2024
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