Posted by: Patricia Salkin | October 16, 2013

Fed. Dist. Court in NY Clears Path for First Amendment Sign and Malicious Prosecution Claims

After homeowner Cynthia Brink displayed several signs on the face of her City of Yonkers residence and in her front yard criticizing local public officials, the City issued her citations for violating a City Sign Ordinance, charges for which she later received an acquittal. Many of the signs included criticism of local judges, including one who had apparently acquitted a woman who Brink claimed had attacked her and her mother, claims about an alleged stalker, and warnings that the neighborhood, Colonial Heights, was unsafe.

The City’s sign ordinance, which prohibits the posting of signs on public property and imposes permit requirements for certain signs on private property, explicitly exempts from its coverage (1) temporary signs and (2) all signs less than two square feet in area. Brink, in order to gain the temporary sign exemption for her signs, would leave the signs in her yard for 90 days, then take them down for a few days, before putting them up again. In January 2010, Brink was cited for violating the sign ordinance by failing to obtain a sign permit and, in February 2010, Brink was issued a Notice of Continuing Violation for failing to remedy the violation. At a hearing on the matter, Brink was told that while signs stating “Merry Christmas,” “Happy Halloween” or “Go Yankees” would be acceptable for her yard, she had to remove her signs criticizing the local judges “and the like.” Brink refused to remove her signs, and she was issued multiple citations, for which she claims to have appeared approximately eight times. In December 2010, Brink appeared in a City Court proceeding about the violations, and was found not guilty. The parties disputed whether this was a criminal proceeding for which a claim of malicious prosecution could be made. Brink then commenced this 42 U.S.C. § 1983 action against the City, the city’s sign inspector Francine Muscente, and Code Enforcement official Al DePierro, claiming malicious prosecution that was based on the content of her speech, in violation of the First Amendment. In this case, the Court merely heard the City’s motion for summary judgment, which it ultimately denied.

In its motion for summary judgment, the City claimed that Brink could not show a First Amendment violation; that even if there had been a deprivation, the deprivation was not a result of the City’s Sign Law; and that the City had probable cause to support its enforcement actions against Brink, rather than mere animus. The Court held that, contrary to Defendant’s contentions, Brink was not required to show that the City’s conduct had chilled her speech, since she had adequately alleged official reprisal, a harm that obviates the need to show a chilling effect. Further, the court held that Brink had engaged in protected speech, since her signs contained political speech and were posted on her private property. The Court also took a moment to chastise the City for failing to comprehend or correctly enforce its own sign ordinance, which explicitly included exceptions for temporary signs like those posted in Brink’s lawn.

Next, the Court held that unsettled issues of fact remained regarding whether the City’s enforcement was motivated at least in part by Brink’s exercise of free speech, in violation of her First Amendment rights. The City’s motion for summary judgment on the First Amendment claims was thus denied.

As for Brink’s state malicious prosecution claims, the Court held that the City Court proceeding did qualify as the type of proceeding from which a malicious prosecution claim might arise, contrary to the City’s contention that the proceeding was simply not a criminal proceeding and thus not subject to such a claim. Further, the Court held that questions remained about whether the City actually had probable cause to commence enforcement, or whether they were motivated by malice, and that these issues of fact made summary judgment inappropriate.

Finally, the Court held that Muscente and DePierro were not entitled to summary judgment on their claims of qualified immunity, noting that this claim also raised facts best resolved at trial. Accordingly, the Court ordered that the case proceed to pre-trial conferences in November 2013, with plans to eventually schedule a full trial on these issues.

Brink v. Muscente, 2013 WL 5366371 (SDNY 9/25/13)

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