U.S.C+')!S T'IC 1 COURT

',S)TRICT OF WN.

FILED

2001 APR 21 P 1: 1

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Joseph P. Galibois

V.

John Fisher

Civil No. 04 - cv-444-JD

O R D E R

Joseph P. Galibois, proceeding pro se, brings claims

pursuant to 42 U.S.C. § 1983, against John Fisher, a sergeant in

the Nashua Police Department, arising out of their interaction on

Election Day in 2004. Galibois alleges that Fisher violated his

First Amendment right to freedom of expression and his Fourteenth

Amendment rights to due process and equal protection. Galibois

moves for summary judgment on his First Amendment claim, and

Fisher moves for summary judgment on all of Galibois's claims.

Standard of Review

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

Case 1:04-cv-00444-JD Document 59 Filed 04/27/07 Page 1 of 16
See Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the respective nonmoving party. See id.

at 255; Medeiros v. Vincent , 431 F.3d 25, 29 (1st Cir. 2005).

Backaround

On the morning of Election Day in 2004, Galibois drove to

Nashua, New Hampshire, to demonstrate against the presidential

candidacy of John Kerry. He chose a site for his demonstration

where twelve to fifteen people were carrying signs for candidates

in a small public park, known as Library Hill, at a busy

intersection in the city. Galibois then changed into his costume

to begin his demonstration.

Galibois's demonstration against Kerry consisted of dressing

as a terrorist while holding a sign with "VOTE KERRY" (with the

R's reversed) on one side and "BUSH" with a red circle and a line

through it over the name on the other side. He was wearing black

sweat pants, a black hooded jacket, a black three-hole ski mask

covering his face, two empty green ammunition bandoliers, and a

plastic toy gun that resembled an AK-47 rifle on a shoulder

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strap. In the course of his demonstration, Galibois bounced up

and down, chanted and moved around, occasionally held his sign

out into the street, and once walked out into the street to avoid

other partisans who attempted to block him or his sign from view.

At about 1:30 p.m., the Nashua Police Department received a

call that someone dressed as a terrorist with a mock machine gun

was marching with a Kerry sign near the Amherst Street School.

Nashua police officer William Constantineau responded to the call

and was directed by another officer to Library Hill, which is

near the school. Sergeant Fisher also responded to the call.

Constantineau and Fisher found Galibois at Library Hill in

his costume and holding the sign. Constantineau told Galibois

that the police had received complaints about a terrorist on the

street carrying a rifle. Fisher told Galibois that he could be

charged with disorderly conduct and that he would be arrested if

he continued. When Galibois protested, Fisher responded, "I am

not playing that game with you today."

Fisher instructed Galibois to remove the gun, bandoliers,

and mask to avoid being arrested. Galibois understood the issue

with the toy gun and bandoliers but argued that he should be

allowed to wear the mask because it was the only hat he brought

with him. Fisher again responded that he was not "playing that

game" and gave Galibois four minutes to remove the gun,

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bandoliers, and mask. Fisher also explained that if Galibois

were arrested, the polls would be closed by the time he was

released. Constantineau asked Galibois for identification

information, which he provided.

Galibois complied with the requirement that he remove the

gun, bandoliers, and mask. Without those accessories, however,

he felt that his demonstration no longer expressed the message he

had intended. Therefore, he gathered his costume and sign and

left the area.

Discussion

Galibois brings a claim under the First Amendment, alleging

interference with his protected political speech, along with due

process and equal protection claims under the Fourteenth

Amendment, all arising from his interaction with Fisher on

Election Day.1 Galibois moves for summary judgment in his favor

on his First Amendment claim. Fisher moves for summary judgment

in his favor on all of Galibois's claims both on the merits and

based on qualified immunity.

1Galibois does not bring claims against Officer

Constantineau.

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A. First Amendment Claim

First Amendment protection "'has its fullest and most urgent

application precisely to the conduct of campaigns for public

office.'" Buckley v. Valeo , 424 U.S. 1, 15 (1976) (quoting

Monitor Patriot Co. v. Roy , 401 U.S. 265, 272 (1971)). "The

First Amendment affords protection to symbolic or expressive

conduct as well as to actual speech." Virginia v. Black , 538

U.S. 343, 358 (2003). Although not all conduct that is intended

to convey a message is protected under the First Amendment,

United States v. O'Brien , 391 U.S. 367, 376 (1967), Fisher does

not dispute that Galibois's demonstration was expressive conduct.

He asserts that the restrictions he imposed on Galibois were

permissible under the First Amendment. Therefore, Galibois is

entitled to summary judgment on the issue that his demonstration

in costume was protected expressive conduct under the First

Amendment.

The government cannot restrict expression simply because "a

vast majority of its citizens believes [the expression] to be

false and fraught with evil consequence." Black , 538 U.S. at 358

(internal quotation marks omitted). When protected expression is

occurring in a public forum, the government "may impose

reasonable, content-neutral, time, place, and manner

restrictions." Capitol Sauare Review & Advisory Bd. v. Pinette ,

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515 U.S. 753, 761 (1995). To meet those requirements, the

restrictions must be "'justified without reference to the content

of the regulated speech, . . . narrowly tailored to serve a

significant governmental interest, and . . . leave open ample

alternative channels for communication.'" Asociation de

Educacioin Privada de P.R., Inc. v. Garcia-Padilla , --- F.3d ---,

2007 WL 1064050, at *11 (1st Cir. Apr. 11, 2007). If, however, a

restriction is content-based rather than content-neutral, it

violates the First Amendment unless "such a restriction is

necessary, and narrowly drawn, to serve a compelling state

interest." Capitol Sauare , 515 U.S. at 761.

1. Content-Based or Content-Neutral

A restriction is content-based if its application depends on

the message or subject matter of the expression. Ark. Writers'

Proiect, Inc. v. Raaland , 481 U.S. 221, 229-30 (1987). In other

words, the government is restricting the expression "`because of

disagreement with the message it conveys.'" Gun Owners' Action

Leaaue, Inc. v. Swift , 284 F.3d 198, 211 (1st Cir. 2002) (quoting

Ward v. Rock Against Racism , 491 U.S. 781, 791 (1989)). In

contrast, a content-neutral restriction "neither advanc[es] nor

imped[es] any particular viewpoints, but simply regulat[es] a

particular mode of potentially expressive conduct . . . at a

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particular place." Id.

As noted above, Galibois's message was that terrorists

favored Kerry over Bush. Fisher restricted Galibois from using

the toy gun, bandoliers, and mask as part of his terrorist

costume because he concluded that by showing those items Galibois

was acting in a threatening manner which was causing public alarm

in violation of New Hampshire's disorderly conduct statute.

Fisher did not interfere with the remainder of Galibois's costume

or his sign that explained the significance of the costume, nor

is there any evidence in the record that Fisher opposed

Galibois's anti-Kerry message. Fisher did not order Galibois to

stop demonstrating against Kerry. Therefore, Fisher's

restriction was aimed at the manner of expression, not the

message, and was content-neutral. Fisher is entitled to summary

judgment on that issue.

2. Intermediate Scrutiny

Because Fisher's restriction on Galibois's costume was

content-neutral, the court next considers whether it was

"narrowly tailored to serve a significant governmental interest,

and allow[ed] for reasonable alternative channels of

communication." Swift , 284 F.3d at 212 (internal quotation marks

omitted). "[N]arrow tailoring is satisfied so long as the

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regulation promotes a substantial government interest that would

be achieved less effectively without it, . . . or if the means

chosen are not substantially broader than necessary to achieve

the government's interest." Garcia-Padilla , 2007 WL 1064050, at

*11 (internal quotation marks omitted). "[W]hen a contentneutral regulation does not entirely foreclose any means of

communication, it may satisfy the tailoring requirement even

though it is not the least restrictive or least intrusive means

of serving the [purpose of the restriction]." Hill v. Colorado ,

530 U.S. 703, 726 (2000). Alternative means of communication

need not employ the same means used in the intended expression.

Id. at 729-30.

Fisher contends that his restriction on Galibois's costume

served a significant government interest in protecting public

order and allowing the free flow of pedestrian and vehicular

traffic. He also contends that the restriction was narrowly

tailored to accomplish that goal. Galibois contests those

grounds, arguing that the record does not show that his

demonstration was threatening public order or impeding traffic.

He further argues that even if that were the case, Fisher's

restriction on his costume was not narrowly tailored to meet

those goals.

Municipalities have a significant interest in protecting

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public order and regulating traffic flow on streets and

sidewalks. See, e.g. , Madsen v. Women's Health Ctr.. Inc. , 512

U.S. 753, 768 (1994); Santa Monica Food Not Bombs v. City of

Santa Monica , 450 F.3d 1022, 1039 (9th Cir. 2006); Am. Arab AntiDiscrimination Comm. v. City of Dearborn , 418 F.3d 600, 604-05

(6th Cir. 2005); Faustin v. City & County of Denver , 423 F.3d

1192, 1200 (10th Cir. 2005); Cox v. City of Charleston , 416 F.3d

281, 283 (4th Cir. 2005). The record is not clear, however, to

what extent Galibois was actually disrupting public order or the

flow of traffic.

Although Fisher contends that Galibois was threatening and

causing public alarm, the record suggests that the toy gun was

obviously not real, and it is undisputed that the bandoliers were

empty. The record does not show to what extent Galibois's

activities, as differentiated from the other supporters of

political candidates, were disrupting the traffic flow on the

streets or sidewalks in the area. Therefore, although Galibois's

demonstration was protected expressive conduct and Fisher's

restrictions were content-neutral, neither Galibois nor Fisher

has shown that he is entitled to summary judgment on the First

Amendment claim based on the remainder of the time, place, and

manner analysis.

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B. Fourteenth Amendment Claims

Galibois contends that Fisher's restrictions on his

demonstration against Kerry also violated his rights to due

process and to equal protection under the Fourteenth Amendment.

Specifically, Galibois alleges that Fisher coerced him into

removing the gun, bandoliers, and mask when no law prohibited him

from wearing those items and when he wore them for legitimate

purposes. Fisher seeks summary judgment on Galibois's Fourteenth

Amendment claims.

1. Due Process

The Fourteenth Amendment protects against governmental

deprivation of life, liberty, or property without due process.

Ramos-Pinero v. Puerto Rico , 453 F.3d 48, 52 (lst Cir. 2006).

That requirement, however, applies only to protected interests.

Centro Medico del Turabo, Inc. v. Feliciano de Melecio , 406 F.3d

1, 7 (lst Cir. 2005). Galibois contends that he had a protected

liberty interest to choose the clothes he wanted to wear in

public, specifically the ski mask.2 See , e.g. , Zalewska v.

2Although Galibois does not allege whether he was invoking

substantive or procedural due process, the context does not

support a procedural due process claim, which would be that he

was deprived of a protected interest without constitutionally

adequate process. See , e.g. , SFW Arecibo, Ltd. v. Rodriguez , 415

F.3d 135, 139 (lst Cir. 2005); Tower v. Leslie-Brown , 326 F.3d

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County of Sullivan, New York , 316 F.3d 314, 321-22 (2d Cir. 2003)

(noting broader liberty interest of general public as opposed to

public employees in choosing apparel).

Despite recasting his claim within the context of a liberty

interest protected by the due process clause of the Fourteenth

Amendment, Galibois's claim remains, in essence, a First

Amendment claim. The due process clause is not an appropriate

means to address a First Amendment issue. See , e.g. , Pagan v.

Calderon , 448 F.3d 16, 33 (1st Cir. 2006); Canady v. Bossier

Parish Sch. Bd. , 240 F.3d 437, 444 (5th cir. 2001). Therefore,

Fisher is entitled to summary judgment on Galibois's due process

claim.3

2. Eaual Protection

Galibois contends that Fisher's restrictions on his

demonstration violated the equal protection clause of the

290, 299 (1st Cir. 2003). Galibois raises no issue as to the

adequacy of the process available to him.

3Even if Galibois's claim were considered on the merits, as

a matter of law, Fisher's direction to remove the mask does not

meet the conscience-shocking standard. See Pagan, 448 F.3d at 32

("Where, as here, a plaintiff's substantive due process claim

challenges specific acts of a state officer, the plaintiff must

show both that the acts were so egregious as to shock the

conscience and that they deprived him of a protected interest in

life, liberty, or property.").

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Fourteenth Amendment because he was singled out from the group of

political demonstrators of which he was a part. He contends that

restrictions were applied to him based on his protest against

Kerry. That theory, however, is not supported by the record

which establishes that Fisher's restrictions were contentneutral.

When a plaintiff is not a member of a suspect class, but

instead consists of a "`class of one,'" to prove an equal

protection violation, he must show that he "'was intentionally

treated differently than others similarly situated '" and that no

rational basis existed for the difference in treatment. Buchanan

v. Maine , 469 F.3d 158 177 (1st cir. 2006) (quoting Buchanan v.

Maine , 417 F. Supp 2d 24, 37 (D. Me. 2006)). Galibois contends

that he was similarly situated to the other demonstrators in the

park because they too were causing a breach of the peace. The

record shows, however, that Galibois was singled out because he

was dressed as a terrorist, carrying a toy gun, and because a

complaint was made about his appearance. Whether or not others

were breaching the peace, Galibois has not shown any evidence

that other demonstrators were dressed as terrorists, were wearing

potentially threatening costumes, or that a complaint was made to

the police against anyone else.

Based on the record in this case, no trialworthy issue

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exists as to Galibois's equal protection claim. Fisher is

entitled to summary judgment on that claim.

C. Oualified Immunity

When a plaintiff alleges a violation of a constitutional

right, the defendant is entitled to qualified immunity unless

"the right was 'clearly established' so that it would be clear

to a reasonable officer that his conduct was unlawful in the

situation he confronted.'" Jenninas v. Jones , 479 F.3d 110, 118

(1st Cir. 2007) (quoting Saucier v. Katz , 533 U.S. 194, 201-02

(2001)). Because qualified immunity protects defendant officials

from the burdens of litigation including standing trial, the

doctrine applies even in cases that do not involve money damages.

See Mitchell v. Forsyth , 472 U.S. 511, 525-27 (1985).4

Fisher contends that the law was not clearly established

that his restriction on Galibois's demonstration would violate

Galibois's constitutional rights. In the qualified immunity

context, the asserted right must be clearly established in a way

that is relevant or particularized to the circumstances of the

4Post trial, however, it would appear that qualified

immunity provides no benefit for a defendant in a case that does

not include a claim for money damages. See Acevedo-Garcia v.

Monroia , 352 F.3d 547, 562 n.6 (1st Cir. 2003); Malik v. Brown ,

16 F.3d 330, 335 n.4 (9th Cir. 1994); Mumford v. Zieba , 4 F.3d

429, 435 96th Cir. 1993).

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case. Anderson v. Creighton , 483 U.S. 635 , 640 (1987).

Therefore , " the law is clearly established either if courts have

previously ruled that materially similar conduct was

unconstitutional , or if a general constitutional rule already

identified in the decisional law applies with obvious clarity to

the specific conduct at issue. " Jennings , 479 F.3d at 124

( internal quotation marks omitted).

Because summary judgment is granted in Fisher's favor on the

Fourteenth Amendment claims , the court considers qualified

immunity only in the context of Galibois ' s First Amendment claim.

At the time of Galibois ' s demonstration on Election Day in 2004,

it was clearly established that even a content-neutral

restriction on the manner of presenting a political message in a

public forum would violate the First Amendment if it were not

narrowly tailored to address a substantial government interest.

See , e.g. , Hill , 530 U.S. at 716-18; Clark v. Cmty. for Creative

Non-Violence , 468 U.S. 288 , 293 (1984 ); United States v. Grace ,

461 U.S . 171, 177 (1983 ); United States v. O'Brien , 391 U.S. 367,

376 (1968 ); Church of the Am. Knights of the Ku Klux Klan v.

Kerik , 356 F . 3d 197, 205-06 ( 2d Cir. 2004 ); Swift , 284 F.3d at

210; Mason v. Wolf 356 F. Supp. 2d 1147, 1162 ( D. Colo. 2005)

(holding that by 2002 law was clearly established to require

narrowly tailored restriction enforcing a significant government

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interest to avoid First Amendment prohibition). As long as the

clearly established law gives notice that the alleged conduct is

unlawful, prior cases need not present identical factual

circumstances. Jennings , 479 F.3d at 143.

Indeed, the record shows that Fisher was aware at the time

that Galibois's demonstration was protected by the First

Amendment. His awareness of the law is further demonstrated by

his limited restriction on Galibois's costume, that is, Fisher

did not prohibit the demonstration in its entirety, but instead

focused on certain parts of the costume. Whether Fisher's

limitations on Galibois's demonstration fit within permissible

restrictions on the manner of expression depends on disputed

facts. Therefore, as the applicable law was clearly established,

Fisher is not entitled to summary judgment based on qualified

immunity on the narrow basis he asserts.

Conclusion

For the foregoing reasons, the plaintiff's motion for

summary judgment (document no. 40) is granted on the issue that

his demonstration was protected expressive conduct and is

otherwise denied. The defendant's motion for summary judgment

(document no. 41) is granted on the issue that his restriction on

the plaintiff's demonstration was content-neutral and on the

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plaintiff's Fourteenth Amendment claims, and it is otherwise

denied. The plaintiff's assented-to motion for a hearing on the

parties' motions for summary judgment (document no. 48) is denied

as the court is not persuaded that additional argument about

factual matters, as proposed in the motion, would provide

assistance to the court.

The claim that remains for trial in this case seeks a

declaratory judgment that the defendant's requirement that the

plaintiff remove his toy gun, bandoliers, and mask, although

content-neutral, violated the First Amendment. The plaintiff

seeks ONLY a declaratory judgment and not money damages, as his

claim for money damages was not included in his amended

complaint, which was allowed in part April 18, 2007.

SO ORDERED.

April27, 2007

cc: Joseph F. Galibois, Pro Se

Brian J. S. Cullen, Esquire

United States District Judge

osdph A. DiClerico, Jr.

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