The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Plaintiff, Matteo Anello, brings this 42 U.S.C. § 1983 action alleging that the City of Niagara Falls, and others associated with it, violated his constitutional rights in the course of one of the City's council sessions. He asserts claims under First, Fourth, Fifth, and Fourteenth Amendments.
Defendants presently move for summary judgment, and, for the following reasons, that motion is granted in part and denied in part.
2. The facts-most of which are captured on video-are relatively straightforward and undisputed. The City of Niagara Falls holds regular council sessions where, according to City of Niagara Falls' Resolution No. 1993-137, citizens are permitted to speak "on any topic of public concern for a time not to exceed five (5) minutes." (Resolution, attached as "Ex. E" to Anderson Decl.; Docket No. 33-1.) While some of the time set aside for public comment is dedicated to the session's agenda items, on October 22, 2007, Anello was one of seven speakers who planned to discuss general matters touching the "good of the community." (Speaker List, attached as "Ex. E" to Brown Decl.: Docket No. 32-2.)
3. When his turn came, Anello took the position behind the lectern and began to cordially address the council members and the audience. (Video of council proceedings, at 00:13, attached as "Ex. F." to Brown Decl.; Docket No. 32-2.)*fn1 In a calm fashion, he read the following from a prepared script:
I've titled this little presentation-Mr. Chairman, members of the council, fellow citizens-I've titled this presentation "Guineas and Greece Balls," sub-titled "Where There is Smoke There is Fire." My intention was to send this statement to the Gazette and to the Buffalo News to let it be written in their respective opinion pages. I've been going back and forth in my mind trying to decide what to do. I finally decide[d] that I need to present this to the council and to the citizens of Niagara Falls in this setting because I believe that it is important enough that it be heard from me directly. I don't want to hide, as some do, in the security they feel when they make statements about others to reporters, or send articles to be written in the opinion pages. There is nothing wrong with this, but it is cowardly, as the person against whom the statement is made cannot defend him or herself. Three times in the past few weeks, different people recounted incidences to me during which Council Chairman Robert Anderson displayed, if these incidences are true, his ignorance in how he, as a councilman or as a person, regards Italians. I want to reiterate: these scenarios came to me during casual conversation and only Mr. Anderson, God, and the people who heard him can know whether or not they are true. If true, and I believe they are, these occurrences in which he aimed his ignorance towards Italians are shameful. (Video, at :00 to 1:38.)
At that point, someone, presumably a council member, said ,"Stop." (Video, at 1:39.) Anello, responded, "I've got the floor." (Anderson Decl., ¶ 21; Docket No. 33.) Defendant Robert Anderson then said, "No you don't have the floor." (Id.) Anello tried to continue with his remarks, but soon a gavel was pounded three times and Anderson directed Defendant Franco Tallarico, a Niagara Falls' Police Officer, to escort Anello from the lectern. (Video, at 2:12; Anderson Decl., ¶ 24.)
4. Anello protested his removal. "I violated no rules of this chamber," he pleaded. (Video, at 2:34.) But Officer Tallarico, after asking several times for him to leave and with Anello still arguing, physically escorted him from the lecturn to a nearby bench to gather his belongings. (Id., at 3:10-3:43.) Anello, however, continued to argue that he should be permitted to speak, prompting Officer Tallarico to become more aggressive, and eventually Tallarico handcuffed him and removed him from the chamber. (Id.)
Anello was charged with disorderly conduct and resisting arrest. (Def.'s Statement of Facts, ¶ 49; Docket No. 38.) Those charges resulted in an "adjournment in contemplation of dismissal." (Id.)
5. Anello alleges two causes of action arising out of his removal from the council: (1) a claim against Officer Tallarico and the City of Niagara Falls for false arrest and malicious prosecution, and (2) a claim against each of the individual defendants and the City of Niagara Falls for violating his First Amendment right to free speech. Defendants move for summary judgment on several grounds.
6. Rule 56 of the Federal Rules of Civil Procedure provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A fact is "material" only if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A
"genuine" dispute exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. In determining whether a genuine dispute regarding a material fact exists, the evidence and the inferences drawn from the evidence "must be viewed in the light most favorable to the party opposing the motion." Adickes v. S. H. Kress & Co., 398 U.S. 144, 158--59, 90 S. Ct.1598, 1609, 26 L. Ed. 2d 142 (1970) (internal quotations and citation omitted).
"Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citation omitted). Indeed, "[i]f, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004) (citations omitted). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
7. Initially, Defendants do not argue that they restricted Anello's speech, but they assert that they are entitled to summary judgment on Anello's First Amendment claim because Anello acted "disruptively" at the council meeting, and thus, their response was lawful. Specifically, Defendants point to Anello's use of the words "guineas ...