08

- 36 71

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Za l aski v. C i t y of B ri d gep o rt U N IT E D S T A T E S C O U R T O F A P P E A LS F O R T H E S E C O N D C IR C U IT

__________ August Term, 2008 (Argued: J une 26, 2009 De cided: Jul y 27, 2010) Docke t No. 08-3671-c v

________________________________________________________________ LIS A Z A LA S K I, Plain tif f- Ap pe lla nt, and FRI ENDS OF ANI MAL S, I NC., Plain tif f,

-v- CI TY OF BRI DGEPORT POL I CE DEPARTMENT and DE PUT Y C HI EF JAME S A. HO NI S, Defendants-A

ppellees

.

________________________________________________________ McLAUGHL I

N, POOL ER and WESL EY, Circuit Judges

. Plaintiff-appe llant L isa Z alaski appe als from the judg ment, dated June 23, 2008, of the United States District Court for the D istrict of Connecticut (B ry ant, J. ), g ra nti ngthe de fe nd antappellee s’ motion for summary judgme nt and dismissi ngthe complaint. B eca use we believe that the district court’s opinion g rantingsummary judgme nt sets forth insufficie nt gr ounds for the dismiss al of Z alaski’s c laims under the F irst Amendment to the United States Constitut ion, we VACATE the judg ment and REMAND f or fur ther proc eeding s consistent with this opi nion. J udg e Wesley

dissents in a separ ate opinion.

__________ DEREK V. OA TI S, L obo & N ovick, L L P, Manchester , CT,Z a la sk i’ s c o- pla int if f, F ri e nd s o f Anim a ls, Inc ., wi thd re w f ro m th e c a se on

so me 1 unspecifie d date pr ior to the district court’s grant of summar y judgme nt. 2 for Plainti

ff-Appellant

. BET SY A. EDWARDS, Office of the City Attorney (John R. Mitol a, on the brief

), B ridg eport, CT, for Defendants- Appellee s . P ER CURIAM : This case prese nts a conflict be tween a n individual’s assertion of he r F irst Amendment rig ht to eng ag e in public protest and the officia l responsibility to maintain public safety and order . We emphasize at the outset that we ta ke no position in thi s opinion as to the merits of the First Amendme nt claim at issue her e. We believe , howeve r, that the spar tan ana ly sis conducted by the district court fa lls short of that require d by First Amendme nt jurisprudence . We theref ore conclude that the ca se should be re manded to the district cour t so that a more c omprehe nsive inquiry might be c onducted. F AC TS The c omplaint in thi s action wa s filed on Octobe r 27, 2006, in the United States District Court fo r t he Di str ic t of

Conne c tic ut. L isa

Z a la sk i, a

c iti zen of Conne c tic ut, name s a s d e fe nd ants the City of B ridg eport Police De partment (“ the City ”) a nd its Deputy

Chief of Police, James Ho nis

. Z a la sk i’ s c la ims ari se fr om h e r p art ic ipatio n in pr ote sts in s up po rt

of anim a l r ig hts 1 takingplace outside of the Ar ena a t Harbor Yar d (“the Are na”) , a 10, 000-se at per formanc e ve nu e wh ic h ty

pic a lly ho sts be tw e e n 1 30 and

15 0 e ve nts a

y e ar. Th e Ar e na

is o wn e d b y

the City of B ridg eport a

nd manag ed by

a private enter

prise ca lled “Center

plate.” Ce nterplate manag es the Are na pursua

nt to the terms of an ope ratingag ree ment, a copy of which is not containe d in the3

rec ord on this appea l. The prote st demonstrations at issue took place in a n are a in front of

the Are na known a s “the Plaza,” whic h the def endants de scribe a s “a la

rg e, semi-c ircular , paved a rea ” throug h which patrons must walk in order to rea ch the Ar ena’ s entranc es and attend perf ormanc es held inside. Z alaski alleg es, and the defe ndants do not dispute, that since the Ar ena w as opene d, in 2001, annual pr otests in support of animal rig hts have be en held in the Plaza duringthe appe ara nce at th e A r e n a o f R i n g l i n gB r o th e r s a

n d B ar nu man d B a i l e y C i r c u s ( “ th e C i r c u s ” )

. S p e c i f i c a l l y, Z a la sk i st ate s th at th e se pr ote sts “ so ug ht t o e ng a g e patr on s o f t he se pe rf or manc e s in

c ivi l discussion in order to dissuade the m from furthe r attenda nce a nd support of these pe rfor mance s until the use and conf

inement of non-huma

n animals by

the Circus ce ased.” Prior to 2006, acc ordingto Z alaski, animal rights protestors applied for and re ceive d pe rm its fr om t

he City to d e mon str ate in t

he Pla za d

ur ingCir c us pe rf

or manc e s, and

no ne of the se demonstrations resulted in “ arr est, infra ctions, or impositi on of any criminal cha

rg es or a c tiv iti e s. ” On

Oc tob e r 1 0, 20 06 , Z a la sk i w a s p art of a g ro up of de mon str ator s w ho su c c e ssf ull y applied to the City

for a permit to hold a demonstration at the Circ us’s perf ormanc es sche duled for late r in the month. She alleg es that the g roup “intende d, throug h the use of or al communication, leaf

leting, sig ns and plac ards, . . . to express their opposition” to the re moval of

“ no n- human a

nim a ls, inc lud inge le ph ants , f ro m th e wi ld, de nyingthe m th e a bil ity to e ng a g e in
no rm a l a c tiv iti e s and

so c ia l inte ra c tio ns , c on fi nin gthe m and ma int a ini ngthe m in

c a pti vit y , a ll for the pur

pose of pr oviding ‘ enter

tainment.’” On Octobe r 25, 2006, Z alaski and othe r demonstrators arr ived at the Plaza, situating themselves about 30- 40 fee t from the entr ance s to the Arena . Z alaski alleg es, howe ver, that theSection 1983 is the statutory means by

which plaintiffs may

seek r elief f

or violations of 2 the ir c on sti tut ion a l r ig hts . Sp e c if ic a lly , th e statut e a llo ws an in div idu a l to br ingsu it u po n a c la im that she has be en “de priv[ed] of any rig hts, privilege s, or immuniti es sec ured by the Constitut ion and laws” of the United States. 42 U.S.C. § 1983. Ther e is no dispute in this case that the a lleg ed deprivation of Z alaski’s F irst Amendment rig hts meets the statutory require ment of havingtaken place “under

color of” state law. 4 de mon str ator s w e re c on fr on te d b y Ho nis and

oth e r C ity

po lic e of fi c e rs and “ phy sic a lly

pu sh e d to

an ar ea a pproxi mately

100 fee t from the entr ance to the Are na.” A t this di stance , it is allege d, the g ro up “ c ou ld n ot e ng a g e patr on s in no rm a l c onve rs atio n, dis tr ibute lit e ratur e , [or ] have the ir signs r ead.” Shortly

there afte r, “a

number of individuals, all standingapproximately 100 fee t from the e ntranc e to the Ar ena in a location ver

bally desig nated by

various police of

fice rs, wer e arr e ste d. ” Ac c or din gto a n o ff ic ia l po lic e re po rt , n ine ind ivi du a ls w e re arr e ste d a nd c ha rg e d w ith b r e a c ho f th e p e a c e , i n t e r f

e r i n gw i thp o l i c e o f

f i c e r s , c r i m i n a l tr e s p a s s , an d i n c i t i n gt o r i o t . It appea rs from the r ecor d that these c harg es we re r esolved by g uilty pleas a nd the impositi on upon eac h demonstrator of

a $35 fine , plus costs. Accor ding to he r af fidavit, Z alaski her self wa s not
arr ested be cause she, alongwith two other demonstrators, purcha sed a ticke t to see the Circus and wa s therea fter a llowed to demonstrate “ within five fee t of the . . . fr ont of [the Arena ] for approximately

an hour.” As noted above , the complaint was f iled two day s after

the Octobe r 25, 2006 demonstration. The c omplaint asserts claims under the Fir st Amendment to the United States Constit ution via 42 U.S.C. § 1983, and seeks dec laratory and injunctive re lief, as we ll as
c omp e ns ator

y dama g e s. On

the da y the c omp la int

wa s f ile d, a ft e r h old inga

he ari ng , U .S. 2 District J udg e Janet C. Hall gr anted a temporar y restra ining or der, the prec ise terms of whic h are not clear from the r ecor d. See F

riends of Animals, Inc. v. City of Bridgeport Police De p’t et al ,5

No
. 3 : 0 6 -c v -1 7 0 8 , 2 0 0 7 W L2 0 1 2 4 5 , at* 2 (D

. C o n n . J an . 2 3 , 2 0 0 7 ). T h re e m o n th s l at er , J u d ge Hall denied the City ’s motion to dis miss the complaint for fa ilure to name a nece ssary

party , i.e., Centerplate , the private firm which mana g es the Ar ena. Id. at *4. In anticipation of the Circ us’s perf ormanc es at the Arena

in October

2007, Z alaski soug ht

a r en ew al o f t h e t em p o ra ry re s tra i n i n g o rd er . T h i s re n ew al wa s d en i edb y U. S
. Di s tri ctJ u d ge Vane ssa L . Br

y ant, to whom the ca se had be en tra nsfer red. Judge Br

y ant spec ifically

considere d the following“re quest” by the City : “At the pre sent time, the defe ndants have reque sted that the plaintiffs demonstrate on the plaza no closer than 80 fe et from the two ma in entranc es to the
are na.” Friends of Animals, Inc. v. City of Bridgeport Police D ep’t e t al , 2007 WL3124872, at *1 (D . Co nn . O c t. 2 5, 20 07 ). Judg e B ryant c on tin ue d b y ho ldi ngthat th e Pla za w a s n ot a “tra ditional public forum,” which w ould require the hig hest level of sc rutiny of any g overnme nt restric tion of First Amendme nt activity takingplace there in: On the basis of the evidenc e pre sented by the par ties, the Court finds that the plaza, which ha s been in e x istence only since 2001, has not bee n devoted to asse mbly and debate. The e vidence indicates that the pla za is used primarily by patrons of the are na for the purpose of

enter ing a

nd exit ing the fac ility

befor e and a fter perf ormanc es inside. In other wor ds, people ordina rily would not visit t he plaza unless they intended to enter

the ar ena to view

a pe rf or manc e ins ide . T he pla za i s c on se qu e ntl y no t a pu bli c fo rum. Id. at *2 (interna l citation and quotation omitted). J udg e B ry ant assumed arguendo that th e Pla za w a s a “ lim ite d p ub lic fo rum,” be c a us e

“ [s]inc e the are na

op e ne d in

20 01 , th e c ity

and are na mana g e me nt h ave a llo we d th e pla int if fs to demonstrate on the plaza.” Id. She added, how ever , that she “r eser ve[d] final dete rmination of whether that permissive use of

the plaza re nders it a limited public forum,” until the filingof6

dispositi ve motions. Id. Judg e B ryant p ro c e e de d to ho ld t hat “ the 80 -f

oo t r e str ic tio n” wa s a p e r m i s s i b l e r e s tr i c t i o nu

p o nth e p l a i n t i f

f s ’ F i r s tA m e n dm e n ta c t i v i ty: Th e re str ic tio n is c on te nt n e utr a l be c a us e it a pp lie s to a ll demonstrators at the circ us reg ardle ss of subject matter and vie wp oint. T he re str ic tio n s e rv e s a signif ic ant g ov e rnme nt i nte re st, namely , secur ity

and orde rly

crow d movement, and the r estriction is narrow ly

tailored to ser

ve that intere st beca

use it does not burden su bs tanti a lly

mor e sp e e c h th an is ne c e ssa ry . . . . [T]he de fe nd ants ’ e xhibi t 1, wh ic h is a

DV D o f a

po rt ion of the de mon str atio n in 2001, includes imag es of de monstrators standingmore than 80 f eet awa y from the a

rena , and those de monstrators could still be seen and he ard by patr on s h e a din gto t

he are na . T he Court

c on se qu e ntl y conclude s that the 80-foot re striction leaves a n ample alter

native c ha nn e l of c omm un ic atio n ava ila

ble to t he pla int if

fs

. Id. at *3. In a brie f orde r, date d J une 20, 2008, Judge B ry ant g rante d the def endants’ motion for
summa ry jud g me nt. Th e or de r r e a ds , in fu ll, a s f oll ow s: ORDER g rantingdefe ndants’ Motion for Summary J udg ment ag ainst the only

rema ining de fenda

nt [ sic], Za laski. The Court p r e v io u s ly

is s u e d ano p in io n , in

w h ic hit d e te r mi n e d th at t h e p la za in front of the a

rena is not a public forum, and Z alaski has not prese nted any

further evidenc e sug g esting that the plaza could be a public forum. Consistent with [ its previously issued opinion] , the Co urt a s s u me s f

o r th e p ur p o s e s o f th e p r e s e n t m o ti o nth at t

h e p la za is a limit ed public for

um beca use the c ity

and the a rena manag ement have allowed Z alaski to demonstrate there . The 80- fo ot r e str ic tio n p re vio us ly a pp ro ve d b y

the Court

is c on te nt n e utr a l, se rv e s th e signif

ic ant g ov e rnme nt i nte re st o f s e c ur ity and or de rl y crow d movement, and doe s not burden substantially more spee ch than is nece ssary . The Court does not nee d to determine whether a g reater re striction would also satisfy the applica

ble test. The complaint arises f

rom demonstrations in the plaza in October 2006, and Z alaski states in her

aff idavit that she purcha sed a c ircus ticket and de mon str ate d c los e r t o th e are na tha n 8 0 f e e t f or a pp ro ximate ly one hour. A ccor dingly , there is no ge nuine issue of mate rial fa ct as to whether

Z alaski’s F irst Amendment rig hts were violated, and the de fe nd ants are e nti tle d to summa ry jud g me nt. Th e Cle rk

is7 direc ted to CL OSE this case. The instant appe al followed. AN AL YSI S

“ We r e vie w a

g ra nt o f s umm ary

jud g me nt de novo .” Ro e v . Ci ty of W ate rb ur y , 542 F.3d 31, 35 (2d Cir. 2008). Summary judgme nt is properly

g rante d when ther e is no g enuine issue of

mate ri a l f a c t and on e pa rt y is e nti tle d to jud g me nt a s a matte r o f l aw. F e d. R. C iv. P. 5 6( c ). Al l ambig uities must be resolved in favor of the non- moving pa rty and all per

missibl e infe renc es from the f actua l rec ord must be dra wn in that party ’s favor. Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 255 (1986). The moving pa rty bear s the burden of

establishing the absenc e of a ny g enuine issue of

materia l fac t. Ce lote

xCor p. v . Ca tre tt , 477 U.S. 317, 322 (1986). Ev e n th ou g h o ur

re vie w i s de novo , and we are fre e to dec ide on any g round appa

rent from the r ecor d, we ha

ve in the past re manded f or fur ther c onsideration bec ause the “district court’s de cision . . . is sim ply too spare to se rve a s a basis for our re view.” Bec kford v. Portuondo , 234 F.3d 128, 130 ( 2d Cir. 2000). As we e x plained in Be c k for d : Although w e have repe atedly observe d, in words or substanc e, that we r eview a

g rant of summar

y judgme nt de novo applying the same sta nd ard a s th e dis tr ic t c ourt ,” that do e s n ot m e an th at it is our f un c tio n to de c ide mot ion s f or summa ry jud g me nt i n th e fi rs t instance. We a

re de pendent on the district c ourt to identify and sort out the issues on such motions, to ex amine and a naly ze them, and to apply the law to the f

acts a cce pted by

the cour t for purpose s of the motion. Id. (interna l quotation and citation omitted). Here , as in Be c k for d , we f ind the district court’s eff orts are “simply

too spare to se rve a s a basis for our re view.” Id. Th is c a se pr e se nts a

c on fl ic t be tw e e n a

n in div idu a l’ s F ir st A me ndme nt r ig ht t o e ng a g e in8

pu bli c pr ote st a

nd a loc a l g ov e rnme nt’ s r e sp on sib ili ty to m a int a in p ub lic sa fe ty and or de r. As a g ener al matter, “ the importance of the F irst Amendment guara ntees to individual development and to our sy stem of re prese ntative g overnme nt” means “ that justifiable g overnme ntal g oals may
no t be a c hie ve d b y

un du ly br oa d me ans havin gan unn e c e ssa ry imp a c t” up on

the ri g hts g uara nteed by the Fir st Amendment. Branzburg v. Haye s , 408 U.S. 665, 680-81 (1972). A t the
same tim e , “ the F ir st A me ndme nt d oe s n ot gua ra nte e the ri g ht t o c omm

un ic ate on e ’s vie ws at a ll times and place s or in any manner that may be desire d.” Heffron v. Int’ l Soc’y for Krishna Consciousness, Inc. , 452 U.S. 640, 647 (1981). I t is “clea r” that a city

has a va lid interest in protectingthe “sa fety and conve nience ” of the patrons of

larg e eve nts held on public proper ty . So c ’y for Kri sh na Con sc iou sn ess, 45 2 U .S. at 650. “Nothingin the Constit ution requires the Gover nment fre ely

to gr ant ac cess to all who wish to ex erc ise their rig ht to free speec h on ever y ty pe of G overnme nt property without reg ard to the nature of the prope rty or to the disruption that might be c aused by the speaker' s activities.” Cornelius v. NAACP Legal Defense &Educ. Fund, 473 U.S. 788, 799-800 (1985). That is, “the g ov e rnme nt i s p e rm itt e d to e xer c ise c on tr ol o ve r t he pu bli c ' s u se of

g ov e rnme nt- owne d p ro pe rt y for e x pressive pur

poses, and the de g ree of control pe rmitted depends upon the na ture of the proper ty and the spe ech r estrictions imposed there on.” Hotel Employe es &Rest. Employe es Union, Local 100 v. City of New Y ork De p't of Parks &Rec

. , 311 F.3d 534, 544 ( 2d Cir. 2002). Acc ording ly , the initial task of a cour t fac ed with a dispute re g ardingFirst Amendme nt
a c tiv ity on g ov e rn me nt p ro pe rt

y is t o d e fi ne the natur e of

the pr op e rt

y at is su e . T o a id i n th is ta sk , th e Sup re me Court

ha s d e fi ne d v ari ou s “ fo ra fo r e xpre ssi on

. . . th at, c or

re sp on din g ly , f

a ll alonga spec trum of constitutional protection,” f rom hig hest to lowest. Pe c k v . B ald win sv ille9

Ce nt. Sc h. Di

st. , 426 F.3d 617, 625 ( 2d Cir. 2005). In tr a dit ion a l pu

bli c fo ra , s uc h a s st

re e ts a nd pa rk s, wh ic h h ave “ imm e mor ia lly be e n h e ld i ntr u s tf o r th e u s e o f

th e p u b l i c , an d , t i m e o u to f

m i n d , h av e b e e nu s e d

f o r p ur p o s e s o f a s s e mb l y, communicatingthoughts be tween c itiz ens, and discussingpublic questions,” the g overnme nt can
enac t content-ba sed re strictions on speech only if they are nece ssary

to serve a

compelling g overnme nt interest. Perry Educ . Ass’n v. Pe rry Local Educators’ Ass’n , 460 U.S. 37, 45 (1983) (i nte rn a l qu otatio n ma

rk s) . Co nte nt n e utr a l ti me , p la c e and mann e r r e g ulatio ns mus t be na rr ow ly tailored to ser

ve a sig nificant g overnme nt interest, and must leave open “a mple alternative channe ls of communication.” Id. We apply the same sc rutiny

to restrictions in a sec ond cate g ory of public prope rty , the desig nated public f

orum. Cornelius , 473 U.S. at 800. A desig nated public f orum exist s when the Gover nment acts “ intentionally ” to cr eate such a spa ce. Id. This remains so eve n though the forum is not one that has be en tra ditionally open to public assembly

and debate. A limited public forum is crea ted when “ the g overnme nt opens a non-public f orum but limit s the expressive ac tivity to cer tain kinds of speake rs or to the discussion of c erta in subjects.” Hotel Employe es , 3 11 F .3 d at 54 5 ( int e rn a l qu otatio n ma rk s o mitte d) . In a

lim ite d p ub lic fo rum, strict scrutiny

does not apply

to expressive activities outside the g ener al purpose f or which the g overnme nt opened the f

orum. Id. at 545-46. Restrictions on ac tiviti es outside the esta blished purpose of

the forum ne ed only

be re asonable and viewpoint neutr al. Id. at 546. F ina lly , in

a no np ub lic fo rum, whic h h a s n ot b e e n o pe ne d, by tr a dit ion or de signatio n, to the public for c ommunication, speec h may be excluded throug h any “re asonable ” conte nt-based
re str ic tio ns , a s lo nga s th e se lim itatio ns do no t “ su pp re ss e xpre ssi on

me re ly be c a us e pu bli c10

officia ls oppose the speaker’ s views.” Perry Educ . Ass’n , 460 U.S. at 46. In conductingforum ana ly sis, we examine a var iety of fa ctors, including“the f orum’s phy sical cha

rac teristics and the c ontext of the prope rty ’s use, includingits location and purpose.” Hotel Employe es , 311 F.3d at 547. We have held that the “ primary fac tor in determiningwhether proper ty owned or controlled by

the g overnme nt is a public forum is how the loca le is used.” Id. (citation omitted). Also rele vant is the g overnme nt’s intent in constructingthe spac e and its nee d for c ontrolling e x pressive a ctivities on the proper ty , as evide nced by

its poli cies or r egulations. See Paulsen v. County of Nassau , 925 F.2d 65, 69 ( 2d Cir. 1991). Fina lly , we c onsider whe ther the prope rty

in question “is part of a

class of pr operty

which by history or tradition has be en open and used f

or expressive ac tivity .” Hotel Employe es , 311 F.3d at 547 (internal quotation mar ks omitted). Ul tim ate ly , f

or um a na ly sis tur

ns in e ve ry

c a se up on

a c are fu l st ud y of the pr op e rt

y in question in light of these fac tors, and we are there fore troubled that the district cour t did not
c on sid e r a

ny of the le a din gpr e c e de nts on fo rum ana ly sis in c a se s invo lvi ngpe rf or manc e ve nu e s. In Paulsen , for e x ample, we considere d restric tions upon the distribut ion of leaf lets outside of Na ssa u Co lis e um, “ an e nc los e d e lli pti c a l st ru c tur e wi th a

c a pa c ity of 18 ,0 00 se ats, [wh ic h] is
surr ound e d b y

a ne tw or k o f s ide wa lks , p e de str ian th or ou g hf are s a nd nume ro us pa

rk inglot s which ca n acc ommodate seve ral thousand a utomobiles.” 925 F.2d at 67. We held in Paulsen that the prope rty constituted a traditional public for um beca use “the Coliseum compound can comf ortably acc ommodate a wide varie ty of expressive ac tiviti es at the same time” a

nd was “ fre quently

the site of boisterous re cre ational ac tivity .” Id. at 7 0
. We further observe d that “[i] n many cities and suburba

n environs . . . , the municipal stadium has11

repla ced the town meetinghall and the public squa re a s a g ather ing pla ce f

or larg e seg ments of the population to eng ag e in meaning ful discourse.” Id. at 71. Application of public for

um analy sis y ielded a dif

fer ent re sult in Hotel Employe es , in which we considere d whether expressive ac tivity

in the Plaza at New Yor

k City ' s L incoln Center could be limited “to eve nts having an ar tisti c or pe rfor

mance -re lated compone nt, resulting in a prohibition on poli tical ra llies, demonstrations, and leaf letting.” 311 F.3d at 539. We answere d thi s q ue sti on in t he a ff ir mativ e , h old ingthat th e Pla za w a s a lim ite d p ub lic fo rum be c a us e in constructingL incoln Center itself, Ne w York City “esta blish[ ed] a cultural c enter devoted to the perf orming arts,” a

nd had ther eby

“evide nced a

n intent to conserve the Plaza's f unction as an extension of the perfor

ming a rts complex.” Id. at 551. The limitation upon the ty pe of expressive ac tiviti es that could take place in the Plaza was proper , we c oncluded, be cause “plazas that serve as for ecour

ts in performingarts complexes are not the ty pes of public spa ces that have traditionally

been de dicated to e x pressive use s.” Id. In Hotel Employe es , we identifie d four f actor s releva

nt to the exi stence of a tra ditional pu bli c fo rum: 1 ) “ wh e the r t

he [pr op e rt

y ] fa lls wi thi n th os e c ate g or ie s o f p ro pe rt y his tor ic a lly deeme d to be traditional public for a,” 2) “whe ther it is the type of pr op e rt y that sh ou ld b e so cl as s i fi edgi v en i t s p h y s i ca l ch ar ac t er i s t i cs , [ 3 )] th e o b j ec t i v e w ay s i ti s u s ed , an d [ 4 )] th e C i ty 's intent in constructingand openingit to the public.” 311 F.3d 534, 536- 37. Distinguishing Paulsen , we obse rved that “the Plaza is far diff ere nt from the ‘boister ous' g rounds of Na ssau Coliseum . . . . I nstead, the City has cr eate d a founta in plaza that serves a s the ce nterpiec e of a pr omi ne nt p e rf

or min gart s c omp le x, and

it h a s so ug ht t o p re se rv e the Pla za a s a n a re a sin g ula rl y dedicated to L incoln Center e vents and other artistic per formanc es.” Id. at 555-56.12

In light of the se consider ations, we have ser ious conce rns about the f orum ana ly sis as appar ently

conducte d by

the district court. Espe cially in light of the spa

rse r ecor d befor e us on this appeal, we will not attempt to conduct this analy sis ourselves. Instead, we rema nd to the dis tr ic t c ourt

wh ic h s ho uld

un de rt ake a

c omp re he ns ive pu

bli c fo rum ana ly sis “ so the dr a sti c device of summary

judgme nt is not precipitously imposed.” Schering Corp. v. Hom e Ins. Co. , 712 F.2d 4, 7 ( 2d Cir. 1983) (citations omitted). CO NC LU SION The judg ment of the district cour t is VACATED and this matter is REMANDED to that court for further proce eding s consistent with this opi nion.The district court noted that between the time it 1 issued an order denying plaintiff’s request for a temporary restraining order and for a preliminary injunction, and the issuance of its order granting summary judgment to 1 08-3671-cv 2 Friends of Animals, Inc. (Zalaski) v. Bridgeport 3 4 WESLEY, Circuit Judge , dissenting: 5 I do not object to the majority’s characterization of 6 the factual background that gave rise to this dispute, nor 7 do I take issue with the majority’s characterization of this 8 Court’s precedent addressing public forum analysis. I 9 dissent because, in my view, the grant of summary judgment 10 to defendants was proper and no remand is necessary. 11 Although I agree with the majority that the district 12 court’s analysis was spare, Op. at 2, I disagree that this 13 serves as a basis for vacating the judgment of that court. 14 As this Court often notes, and as the majority acknowledges, 15 see Op. at 7, “‘we may affirm the [d]istrict [c]ourt’s order 16 of summary judgment on any ground that finds adequate 17 support in the record.’” Savin Corp. v. Savin Group , 391 18 F.3d 439, 450 (2d Cir. 2004) (quoting Eichelberg v. Nat’l 19 R.R. Passenger Corp. , 57 F.3d 1179, 1186 n.6 (2d Cir. 20 1995)). 21 The record in this case is closed and there will be 22 nothing new for the district court to consider on remand. 1defendants, “Zalaski [did] not present[] any further

evidence suggesting that the plaza could be a public forum.” Nor did plaintiff seek further discovery, see Fed. R. Civ. P. 56(f), or argue that the district court improperly precluded her from submitting additional evidence. Of course, while the “moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact,” when the moving party meets that burden, the nonmoving party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” F.D.I.C. v. Great Am. Ins. Co. , 607 F.3d 288, 292 (2d Cir. 2010) (internal quotation marks omitted). 2 1 What the majority asks the district court to do is to 2 provide a more detailed explanation of its decision. 3 However, this Court is charged with conducting a de novo 4 review of the legal question presented by this appeal. And, 5 because this case presents an important question under the 6 First Amendment, we are obligated to conduct “an independent 7 and searching inquiry of the entire record,” Guiles ex rel. 8 Guiles v. Marineau , 461 F.3d 320, 324 (2d Cir. 2006), in 9 order to satisfy ourselves that the grant of summary 10 judgment was proper. See Fed. R. Civ. P. 56(c)(2). 11 There is no dearth of law in our Circuit setting out 12 the factors that should inform a district court’s public 13 forum analysis. E.g. , Bronx Household of Faith v. Bd. of 14 Educ. , 492 F.3d 89, 97 (2d Cir. 2007) (Calabresi, J. , 15 concurring); Sussman v. Crawford , 488 F.3d 136, 140 (2d Cir.3 1 2007) (per curiam); Huminski v. Corsones , 396 F.3d 53, 89-92 2 (2d Cir. 2005); Peck ex rel. Peck v. Baldwinsville Cent. 3 Sch. Dist. , 426 F.3d 617, 625-27 (2d Cir. 2005); Hotel Emps. 4 & Rest. Emps. Union v. City of N.Y. Dep’t of Parks & 5 Recreation , 311 F.3d 534, 544-53 (2d Cir. 2002). In my 6 view, there is nothing to indicate that the district court 7 was unaware of, or misapplied, this line of precedent. 8 Indeed, although the majority characterizes the district 9 court’s order as “brief,” Op. at 6, and states that it has 10 “serious concerns about the forum analysis as apparently 11 conducted by the district court,” Op. at 12, it identifies 12 no error committed by the court below. Of course, “any 13 injury to First Amendment rights is a matter of profound 14 concern to the courts.” Farrell v. Burke , 449 F.3d 470, 497 15 (2d Cir. 2006). But, because I conclude that there was in 16 fact no error committed by the district court, I must also 17 necessarily conclude that there was no injury to the 18 plaintiff’s First Amendment rights. 19 The majority cites Beckford v. Portuondo , 234 F.3d 128 20 (2d Cir. 2000) for the propositions that “[t]he district 21 court’s decision . . . is simply too spare to serve as a 22 basis for our review” and “that it is [not] our function to4 1 decide motions for summary judgment in the first instance.” 2 Id. at 130. But that case is distinguishable. Here, the 3 district court made specific reference to its previous 4 decision denying plaintiff’s motion for a temporary 5 restraining order and for a preliminary injunction. See Op. 6 at 6. In that previous opinion, the district court 7 described the property at issue and the challenged 8 restriction on plaintiff’s speech, and applied the 9 principles of the public forum doctrine to the facts of this 10 dispute. See Friends of Animals, Inc. v. City of Bridgeport 11 Police Dep’t , No. 06 Civ. 01708 (VLB), 2007 WL 3124872, at 12 *1-3 (D. Conn. Oct. 25, 2007). In its order granting 13 summary judgment, the district court adopted its previous 14 factual findings and, “[c]onsistent with [its previously 15 issued opinion], the [c]ourt assume[d] for the purposes of 16 [deciding the motion for summary judgment] that the plaza is 17 a limited public forum.” 18 In the district court’s decision denying Zalaski’s 19 motion for a temporary restraining order and for a 20 preliminary injunction, referenced in its order granting 21 summary judgment, the district court heeded the instructions 22 the majority now provides for it on remand. For example,5 1 the majority notes that “the initial task of a court faced 2 with a dispute regarding First Amendment activity on 3 government property is to define the nature of the property 4 at issue.” Op. at 8. In its opinion addressing the motion 5 for a temporary restraining order and for a preliminary 6 injunction, the district court noted that, “[i]n considering 7 whether the defendants’ request comports with the 8 plaintiffs’ rights to free speech and assembly, the [c]ourt 9 first examines the nature of the forum in which the 10 plaintiffs seek to demonstrate.” 2007 WL 3124872, at *1 11 (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n , 12 460 U.S. 37 (1983)). After discussing the established 13 categories of public fora, the district court concluded 14 “that the 80-foot restriction [imposed by the City] 15 satisfies the test for a limited public forum.” Id. at *3. 16 In her brief to this Court, plaintiff does not argue 17 that the district court misapplied the applicable law. Upon 18 de novo “[c]onsideration of the relevant factors, i.e. , the 19 [p]laza’s location, use, function, and purpose, together 20 with the City’s intent in building the space,” Hotel Emps. , 21 311 F.3d at 552, I find that evaluating plaintiff’s claims 22 in light of the principles applicable to a limited publicAlthough the majority is “troubled” by the district 2 court’s failure to cite to “leading precedents on forum analysis” from this Court, Op. at 10, this omission does not render the district court’s order flawed. 6 1 forum was proper. 2 This case is further distinguishable from the scenario 3 presented by Beckford . In Beckford we noted that we were 4 “troubled” by the district court’s order because it invoked 5 an “alternate ground,” ostensibly advanced by the 6 defendants, but which we could not identify in the 7 defendants’ memorandum of law. 234 F.3d at 129. Here, no 8 such error undermines my confidence in the propriety of the 9 district court’s order. 10 The district court’s determination that “there is no 11 genuine issue of material fact as to whether Zalaski’s First 12 Amendment rights were violated” was proper. The circus was 2 13 a large event, which required arena personnel and the 14 Bridgeport Police Department to set up wooden sawhorses to 15 form “chutes” in which patrons would line up to pass through 16 security and enter the arena. Sawhorses were also placed 17 between the entrance of each chute in a semi-circular arc, 18 mirroring the front of the arena. Only ticket-holding 19 patrons — including Zalaski herself — were permitted to7 1 enter these lines. Thus, the geographical restriction was 2 not an arbitrary one; rather it was related to legitimate 3 security measures in place at the arena. See Heffron v. 4 Int’l Soc’y for Krishna Consciousness, Inc. , 452 U.S. 640, 5 650-51 (1981). As the Supreme Court’s precedent makes 6 clear, “we simply do not view the question [of] whether the 7 [80]-foot boundary line could be somewhat tighter as a 8 question of constitutional dimension.” Burson v. Freeman , 9 504 U.S. 191, 210 (1992) (internal quotation marks omitted). 10 Therefore, any disagreement Zalaski may have as to where the 11 barricades were placed does not create a disputed issue of 12 material fact. See id. 13 The record reveals that the plaza at issue is intended 14 to be, and is primarily used as, a means of entry and exit 15 to the arena. And, while close to a pedestrian sidewalk, it 16 is set off from the public sidewalk by landscaping, grass, 17 and a private drive for patrons of the arena. Thus, the 18 challenged restriction on where protestors may stand is 19 “reasonable and viewpoint-neutral” and does not violate the 20 First Amendment. Pleasant Grove City v. Summum , 129 S. Ct. 21 1125, 1127 (2009). 22 I dissent because, in my view, there is no basis for8 1 vacating the judgment of the district court when a de novo 2 review of the record reveals that the grant of summary 3 judgment was proper. In my view, there is no evidence in 4 the record that would support a different result. See 5 E.E.O.C. v. J.B. Hunt Transp., Inc. , 321 F.3d 69, 73-74 (2d 6 Cir. 2003). Accordingly, for the reasons articulated above, 7 I would affirm the judgment of the district court.