18‐514 (L) Deferio v. City of Syracuse

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of May, two thousand nineteen.

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

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v. 18‐514 (L)*; 18‐516 (XAP)

CITY OF SYRACUSE, Defendant‐Appellee,

JOSEPH SWEENY, individually and in his official capacity as Captain for the City of Syracuse Police Department, JAMEY LOCASTRO, individually and in his official capacity as Sergeant for the City of Syracuse Police Department, FRANK FOWLER, in his official capacity as Chief of Police for the City of Syracuse Police Department, Defendants. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

* The Lead appeal, 18‐514, was dismissed on June 18, 2018.

FOR PLAINTIFF‐APPELLANT: NATHAN W. KELLUM, Center for Religious Expression, Memphis, Tennessee.

FOR DEFENDANT‐APPELLEE: TODD M. LONG, Office of the Corporation Counsel, City of Syracuse, Syracuse, New York.

FOR AMICUS CURIAE Shannon T. OʹConnor, Goldberg Segalla LLP, INTERNATIONAL MUNICIPAL Syracuse, New York. LAWYERS ASSOCIATION:

Appeal from the United States District Court for the Northern District of

New York (Kahn, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant James Deferio appeals from a judgment, entered

February 6, 2018, to the extent it dismissed his claims against defendant‐appellee City of

Syracuse (the ʺCityʺ). Deferio asserted constitutional claims against the City and three

Syracuse police officers for violating his First and Fourteenth Amendment rights by

requiring him to move from one side of the street to the other when he was seeking to

express his religious views (about Christianity) during gay pride celebrations in June

2014 and June 2015 (the ʺPride Festivalsʺ) organized by CNY Pride Inc. (ʺCNY Prideʺ)

and conducted pursuant to City permits.

Following the partiesʹ cross‐motions for summary judgment, on January

31, 2018, the district court granted the motions in part and denied them in part. The

district court held as a matter of law that the two of the three police officers ‐‐ Sergeant

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James Locastro and Captain Joseph Sweeny ‐‐ violated Deferioʹs clearly established

rights under the First Amendment by restricting his speech and awarded him nominal

damages of $1.00 against them. The district court further held, however, that the City

was entitled as a matter of law to dismissal of Deferioʹs municipal liability claims,

concluding that Deferio had failed to present evidence that the City had adopted any

unconstitutional policy that caused a violation of his First Amendment rights.1 The

district court also ruled that Deferio was not entitled to a permanent injunction.

On appeal, Deferio presents two challenges: (1) the district court erred in

concluding that the City was not subject to municipal liability under Monell v.

Department of Social Services,

(1978); and (2) he was entitled to a permanent

injunction prohibiting the City from restricting his religious expression on public

sidewalks during future Pride Festivals. We assume the partiesʹ familiarity with the

underlying facts, procedural history, and issues on appeal.

I. Standard of Review

We review a district courtʹs decision on cross motions for summary

judgment de novo, construing the evidence with respect to each motion in the light most

favorable to the non‐moving party. Scholastic, Inc. v. Harris,

(2d Cir.

2001); see also Terwilliger v. Terwilliger,

(2d Cir. 2000). ʺSummary

1 The claims against the third officer were dismissed. Sweeny and Locastro filed a notice of appeal, but their appeal was dismissed after they failed to file an appellate brief.

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judgment is appropriate where there exists no genuine issue of material fact and, based

on the undisputed facts, the moving party is entitled to judgment as a matter of law.ʺ

Novella v. Westchester Cty.,

(2d Cir. 2011) (internal quotation marks

omitted). Further, we review a district courtʹs denial of a request for a permanent

injunction for abuse of discretion. All. for Open Socʹy Intʹl, Inc. v. U.S. Agency for Intʹl

Dev.,

(2d Cir. 2018) (citing eBay Inc. v. MercExchange, L.L.C.,

(2006)).2

II. Discussion

A. Municipal Liability

To establish municipal liability under

, a plaintiff must

demonstrate that the deprivation of his constitutional rights was ʺcaused by a

governmental custom, policy, or usage of the municipality.ʺ Jones v. Town of East Haven,

(2d Cir. 2012) (citing Monell, 436 U.S. at 690‐91). The existence of a

municipal policy that gives rise to Monell liability can be established in four ways: (1) a

formal policy endorsed by the municipality, Turpin v. Mailet,

(2d Cir.

1980); (2) actions directed by the governmentʹs ʺauthorized decisionmakersʺ or ʺthose

2 Deferio argues that this Court reviews a district courtʹs decision to deny injunctive relief de novo when it pertains to a First Amendment claim. While this Court does review a district courtʹs legal conclusions de novo when reviewing an order granting a permanent injunction regarding First Amendment violations, we review ʺits ultimate decisionʺ for abuse of discretion. Expressions Hair Design v. Schneiderman,

(2d Cir. 2015) vacated on other grounds by

(2017); see also Open Socʹy,

; N.Y. Civil Liberties Union v. N.Y.C. Transit Auth.,

(2d Cir. 2012).

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who establish governmental policy,ʺ Pembaur v. City of Cincinnati,

(1986); (3) a persistent and widespread practice that amounts to a custom of which

policymakers must have been aware, see Turpin,

; or (4) a ʺconstitutional

violation[] resulting from [policymakersʹ] failure to train municipal employees,ʺ City of

Canton v. Harris,

(1989). Once a plaintiff has demonstrated the

existence of a municipal policy, a plaintiff must then establish a causal connection, or an

ʺaffirmative link,ʺ between the policy and the deprivation of his constitutional rights.

Vippolis v. Vill. of Haverstraw,

, 44 (2d Cir. 1985); accord Bd. of the Cty. Commʹrs

v. Brown,

(1997) (holding that plaintiff must ʺdemonstrate that, through

its deliberate conduct, the municipality was the ʹmoving forceʹ behind the injury

allegedʺ).

Deferio argues that here the City ʺcreat[ed], maintain[ed], and enforce[d] a

permit zone policy that grants a private permittee [CNY Pride] of a popular public

event censorial control over words uttered on open and accessible public sidewalks

bounding the event.ʺ Appellantʹs Br. at 20. He contends that this policy ‐‐ which he

claims gives ʺproprietary controlʺ to a private entity over public city sidewalks,

at 23

‐‐ gives rise to municipal liability under Monell because it was (1) formalized in writing

through a training bulletin promulgated by the Chief of Police to the Syracuse police

department; (2) ratified by policy‐making officials; and (3) part of a persistent and

widespread pattern that was enforced as a custom. We are not persuaded.

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First, while the Police Chiefʹs 2016 training bulletin set forth an official

policy, it simply did not set forth the policy that Deferio contends violated his

constitutional rights. The bulletin explains that officers assigned to patrol a permitted

event must carry a copy of the permit ʺin order to enforce the designated boundaries of

the permitted event.ʺ Appʹx at 143. The bulletin does not set forth a policy that grants

ʺproprietary controlʺ to a private entity: it says nothing about granting permittees the

right to exclude individuals based on their views. Instead, the bulletin merely provides

that permits are required for assemblies and parades in streets, describes how permits

can be acquired, and explains that permits are required to help officers ʺdischarge their

dutiesʺ in protecting the public and coordinating any ʺemergency services to the

community.ʺ Appʹx at 143. To the extent the bulletin shows that some permits may

cover sidewalks, that alone does not establish an unconstitutional policy because a

municipality is not per se barred from restricting protected speech on sidewalks or

other public fora. See Ward v. Rock Against Racism,

(1989); Zalaski v.

City of Bridgeport Police Depʹt,

(2d Cir. 2010) (holding that government

may apply content‐neutral time, place, manner restrictions if they are narrowly tailored

to serve significant government interests and alternative channels of communication are

available). Therefore, the training bulletin was not, as Deferio contends, the cause of

any First Amendment violation.

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Second, Deferio failed to present any evidence from which a jury could

find that any policy‐making official ratified a policy that gave ʺproprietary controlʺ over

public sidewalks to a private entity. The two permits did not give CNY Pride

ʺproprietary controlʺ over public sidewalks. The first permit provided for ʺno speakers

@ sidewalks,ʺ without regard to content, and apparently was intended simply to bar

amplification devices on the sidewalks. Supp. Appʹx at 1158. In any event, no

authoritative policymaker endorsed Locastroʹs interpretation that the permit barred

Deferio from expressing his views by the Pride Festivalʹs entrance. The second permit

did give CNY Pride ʺexclusive controlʺ over certain areas, but only ʺfor the limited

purpose of allowing exclusive use of sound amplification and access to the festival.ʺ

. Moreover, the district court noted that ʺCaptain Sweeny did not merely enforce

the words of the permit,ʺ but he went beyond the terms of the permit by imposing even

greater restrictions on Deferioʹs speech. Appʹx at 203.

Third, Deferio has not identified a persistent or widespread practice that

would rise to the level of a custom for purposes of Monell liability. Although a policy

need not be formalized or unconstitutional on its face to meet the Monell standard of

municipal liability, Deferio fails to demonstrate that officers habitually or customarily

invoked any policy to systematically violate constitutional liberties. See Pembaur, 475

U.S. at 480‐81; Jones,

; Reynolds v. Giuliani,

(2d Cir. 2007).

The officersʹ invocation of permits on two occasions to restrict Deferioʹs First

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Amendment rights do not together constitute a pattern or custom which is ʺso manifest

as to imply the constructive acquiescence of senior policy‐making officials.ʺ Sorlucco v.

N.Y.C. Police Depʹt,

(2d Cir. 1992) (finding that survey conducted by

appellant which revealed four allegedly discriminatory terminations of female

employees, and other allegedly discriminatory treatment, cannot alone have constituted

a custom); Turpin,

(holding that policy cannot ʺordinarily be inferred

from a single incident of illegality,ʺ and even multiple incidents, without more, do not

create custom). Nor did Deferio allege or otherwise argue that the officersʹ conduct was

directed at anyone else, which further undercuts Deferioʹs contention that Syracuse had

a custom or practice of infringing on constitutional rights. See, e.g., St. Louis v.

Praprotnik,

(1988) (finding plaintiffʹs failure to allege relevant conduct

ʺwas ever directed against anyone other than himselfʺ supported conclusion City could

not be held liable under Monell).

Because Deferio failed to demonstrate the existence of a formalized City

policy, a policy ratified by the Cityʹs decisionmakers, or a custom that caused his

constitutional injury, the district court properly concluded the City is not subject to

Monell liability.

B. Permanent Injunction

Deferio argues that he was entitled to permanent injunctive relief

prohibiting the City from restraining his future religious expression during Pride

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Festivals, but that argument fails. To obtain a permanent injunction, a plaintiff must

ʺsucceed on the merits and show the absence of an adequate remedy at law and

irreparable harm if the relief is not granted.ʺ Roach v. Morse,

(2d Cir.

2006) (citation and internal quotations marks omitted). Here, the district court did not

err in denying Deferioʹs request for permanent injunctive relief because Deferio did not

succeed on the merits, as he failed to show that the City violated his First Amendment

rights regarding his religious expression. Thus, we need not decide whether there is an

adequate remedy at law or a chance of irreparable harm absent relief, and Deferio is not

entitled to permanent injunctive relief.

* * *

We have considered Deferioʹs remaining arguments and find them to be

without merit. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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