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July 21, 1992



The opinion of the court was delivered by: GERALD L. GOETTEL


 The public debate over abortion that has marched through our streets, preoccupied our legislatures, and intermittently covered the front pages of our newspapers with images of angry confrontation surfaces now even in the smallest and most genteel of our communities. Once the protestors' shouts have subsided and order has been momentarily restored, courts must often untangle the bitter recriminations and lawsuits left in their wake.


 Plaintiff William Crist, a retired businessman and resident of the Village of Larchmont, has been a vocal member of the pro-life movement in the Larchmont community. Over the years, Mr. Crist has expressed strong anti-abortion viewpoints in the local press and attained a measure of notoriety for his outspoken positions on abortion.

 On the evening of July 1, 1991, the Larchmont Avenue Church, a Presbyterian church located in Larchmont, hosted a meeting concerning abortion and the then recent Supreme Court case of Rust v. Sullivan. The forum, organized by "Informed Choice," an ad hoc committee, consisted of a panel of scheduled speakers, including the director of Planned Parenthood of Westchester-Rockland, a local Congresswoman, and Dr. Irving Rust, the major litigant in the Supreme Court case, addressing an audience. A newspaper article reporting on the event described it as an "Informed Choice" fundraiser. The proceeds from the suggested $ 20 per ticket admission were to benefit Planned Parenthood of Westchester-Rockland and the Westchester Coalition for Legal Abortion.

 According to defendants, several Village of Larchmont police officers were assigned to the church that evening to prevent the outbreak of any incidents the emotionally charged issue of abortion might ignite. Plaintiff notes that no officers were posted inside the church during the meeting or outside the entrance.

 Plaintiff learned about the fund-raiser in advance from a local newspaper and informed the Mayor that he had a right to present his views on abortion as a member of the panel of speakers. After being told by the church's assistant minister that he could not join the forum panel, plaintiff communicated to the Mayor his intention of asserting this right at the meeting. Crist apparently received no official reply from the Mayor's office.

 On the night of the event, plaintiff appeared at the church and asked for the opportunity to present a statement as a panel member. According to plaintiff, he contacted the Police Department and requested the presence of an officer to protect him in a potentially hostile environment. Plaintiff met defendant Andrea Potash, a member of the group "Informed Choice" that organized the fund-raiser, inside the church entrance.

 According to Sgt. Kahn, he was summoned to the church by police headquarters at approximately 7:30 p.m. When he arrived, plaintiff was standing in the church doorway demanding the opportunity to express his views as a member of the panel of speakers. According to Sgt. Kahn, Potash refused this request and offered to allow plaintiff to join the audience. Plaintiff refused. *fn1" According to defendant Potash, plaintiff voiced his intention to disrupt the forum if he was not granted the right to join the speakers' panel.

 Defendants also maintain that while Crist remained inside the church doorway, he interfered with the arriving audience. In any event, the argument continued until Potash eventually asked Crist to either join the audience or leave the church premises. Crist refused and was arrested by officer Kahn for trespassing under N.Y. Penal Law § 140.05 and taken to police headquarters. There, plaintiff was charged with trespass on a complaint signed by defendant Potash.

 After two court appearances, the case was dismissed when Potash withdrew her complaint. Plaintiff commenced suit on February 4, 1992 pursuant to 42 U.S.C. § 1983 for false arrest in connection with his attempt to exercise his right to free speech at the "Informed Choice" forum. Plaintiff named as defendants the Village of Larchmont, the Larchmont Police Department, its Police Chief, the Larchmont Avenue Church, and Andrea Potash. Defendant Potash later cross-claimed against the Village of Larchmont, its Police Department, and its Police Chief (the "Larchmont defendants") for contribution and indemnity in the case that she is found liable in damages to plaintiff.

 An amended complaint was served, identical to the original complaint in all respects except for the addition of paragraph 16 alleging a conversation between Crist and the Mayor prior to plaintiff's arrest. Paragraph 16 states that Crist informed the Mayor of his belief in his right to address the meeting as a panel speaker and his intention assert this right.

 Defendants Village of Larchmont, the Police Department, the Police Chief, Andrea Potash, and the Larchmont Avenue Church have moved to dismiss the complaint under Rule 12(b)(6), Fed.R.Civ.P. The Larchmont defendants have ...

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