Full opinion text
MEMORANDUM OF DECISION AFTER TRIAL TO THE COURT VANESSA L. BRYANT, District Judge. I. Introduction The Plaintiffs, Lisa Zalaski (“Zalaski”), Derek V. Oatis (“Oatis”) and Animal Rights Front, Inc., (“ARF”) initiated this action pursuant to 42 U.S.C. § 1983 against the City of Hartford (the “City”) and Sergeant Daniel Albert (“Albert”) in connection with Zalaski and Oatis’s arrest by members of the City of Hartford Police Department and Defendant Albert during an April 23, 2006 animal rights protest at the Hartford Marathon Foundation, Inc.’s Red Nose Run event (“Red Nose Run” or “Event”). The Plaintiffs presented evidence at trial in support of five claims. These claims were that Defendant Albert’s actions violated Plaintiffs’ First Amendment rights to free expression and assembly, and secondly of their right to free speech under Article First, §§ 4 and 14 of the Connecticut Constitution. They also presented evidence in support of their claims of unlawful retaliation in violation of the First Amendment; false arrest in violation of the Fourth Amendment; and malicious prosecution in violation of the Fourth Amendment. Defendant Albert offered evidence namely that Plaintiffs’ arrests were supported by probable cause and that he is entitled to the protection of qualified immunity. II. Background a. Allegations in the Complaint Plaintiffs filed their complaint on April 21, 2008 consisting of a litany of facts all of which were incorporated into six causes of action against the City of Hartford and Defendant Albert. Specifically, the complaint alleges that Plaintiffs were protesting the abuse of circus animals during the Red Nose Run event held at the Mortensen Riverfront Plaza (the “Riverfront Plaza” or “Plaza”) which was a children’s run event celebrating the circus coming to Hartford. Plaintiffs broadly allege that Defendants arrested Plaintiffs without probable cause and in violation of Plaintiffs’ First Amendment rights to free speech after they declined to move from the area in which they were demonstrating in to another area in Riverfront Plaza as requested by Defendant Albert. See [Dkt. # 1, Complt. at ¶¶ 1-10]. In the first cause of action, Plaintiffs alleged that “Defendants excluded the Demonstrators from an area owned by the City of Hartford and historically held open for public use” and that “by its arrests and threats to arrest the Demonstrators based on their future exercise of free speech and assembly, Defendants have imposed a pri- or restraint on the Demonstrators in violation of their First Amendment Right to expression and assembly upon a public forum.” [Dkt. # 1, PI. Compl. at ¶¶ 18-24], Although, Plaintiffs have alleged a single cause of action with respect to the First Amendment in the complaint, the pleadings and submissions both before and at trial from both parties suggest that Plaintiffs are asserting two separate causes of action under the First Amendment. First, generally that Defendant’s actions abridged their right to free speech under the First Amendment, and second, that Plaintiffs Zalaski and Oatis were arrested in retaliation for the exercise of their First Amendment rights. The Defendant introduced evidence in defense of both claims at trial and did not object to the admission of evidence in support of either claim at trial. In the second cause of action, Plaintiffs alleged that Defendant City of Hartford was liable for the violation of Plaintiffs’ First Amendment rights on the basis that “Defendant Albert, in taking these actions described [tjherein, had final decision-making authority to act on behalf of the Defendant City of Hartford” and that these “actions were taken pursuant to official policy of the Defendant City of Hartford.” [Dkt. # 1, PI. Compl. at ¶ 25]. In the third cause of action, Plaintiffs alleged that “Defendant Albert, falsely and maliciously and without probable cause, provocation or warrant, ordered the arrest [of] the Plaintiffs on a purported charge of obstructing free passage in violation of Connecticut General Statutes Section 53a-182a.” [Dkt. # 1, PI. Compl. at ¶¶ 20-29], Plaintiffs alleged that the charges against them were dismissed on May 2, 2006. In the fourth cause of action, Plaintiffs alleged that the “actions of the Defendants violated Plaintiffs’ rights as secured by the Constitution of the State of Connecticut.” [Id at ¶ 26], In the fifth and six causes of action, Plaintiffs alleged that Defendants engaged in the intentional infliction of emotion distress and the negligent infliction of emotional distress. [Id. at ¶¶ 30-33]. b. Procedural Background On March 31, 2010, 704 F.Supp.2d 159 (D.Conn.2010), the Court denied in part and granted in part Defendants’ motion for summary judgment. See [Dkt. # 61]. The Court granted summary judgment on Plaintiffs’ intention and negligent infliction of emotional distress claims and denied summary judgment as to Plaintiffs’ other claims. The Defendants then appealed the Court’s denial of summary judgment. On May 26, 2011, 462 Fed.Appx. 13 (2d Cir. 2011), the Second Circuit dismissed the appeal for lack of appellate jurisdiction. The Court then entered a scheduling order directing the parties to prepare for trial in December of 2011. On November 16, 2011 in preparation for and to clarify the issues to be decided at trial, the Court ordered the Plaintiffs to provide the Court with a brief statement articulating with specificity the basis of its claim that Defendants’ actions were taken pursuant to a municipal policy or custom and what facts Plaintiffs intend to prove to support its claim. See [Dkt. # 137]. In response, Plaintiffs stated that they did not intend to pursue the claim that Defendant Albert had final decision-making authority at trial and indicated that they intended to demonstrate a municipal policy or custom through a failure to train. See [Dkt. # 145]. Defendants responded that since the complaint contained no allegations whatsoever regarding training, the complaint failed to allege a plausible Monell claim. Defendants argued that such claim should not be allowed to proceed to trial. On December 1, 2011, four days before the start of trial, Plaintiffs moved to amend/eorrect the complaint to delete the prior allegation that Defendant Albert had final-policy making authority and instead assert a single new allegation that there was a “a failure to train by the Defendant City of Hartfrod [sic].” See [Dkt. # 154, Attach 2, PI. proposed amended complaint at ¶ 25]. Defendants opposed Plaintiffs’ motion to amend the complaint on the basis of prejudice and in the alternative moved to dismiss the proposed amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). The Court denied the motion to amend and granted the motion to dismiss finding that the proposed amended complaint failed to allege facts which stated a plausible claim for entitlement with respect to municipal liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See [Dkt. # 161]. III. Findings of Fact As a preliminary matter, the parties, in their joint trial memorandum, stipulate to the following facts. On April 23, 2006, the Hartford Marathon Foundation, Inc. organized a Red Nose Run event that was held at the Riverfront Plaza in Hartford Connecticut. [Dkt. # 120, Joint Trial Memorandum at 11-12]. The Plaza spans over Interstate 91 South of the Founders Bridge between the Connecticut River and Columbus Boulevard. [Id], The Red Nose Run is a community and family-oriented event held to promote the circus in anticipation of circus performances held in Hartford. [Id.]. The event consists of a “race” for young children. As a result, the attendees of the Red Nose Run are primarily families and young children. [Id.]. For the event, the Red Nose Run organizers erected a tent at the Riverfront Plaza that children and adults traveled in and out of during the event. [Id.]. While the Hartford Marathon Foundation obtained a permit issued by the City of Hartford to use the Riverfront Plaza for the Red Nose Run, the event was co-organized by Feld Entertainment, which is the parent company to Ringling Brothers and Barnum and Bailey Circus. [Id.]. The Plaintiffs, Oatis and Zalaski, along with other members of ARF attended the Red Nose Run at the Riverfront Plaza on April 23, 2006 for the purpose of protesting the use of animals in the circus. The Plaintiffs did not obtain a permit for their protest activities. [Id.]. Sergeant Albert, along with officers Kevin Hart, Roger Kergaravat and Donald Rodrique, were dispatched to the Riverfront Plaza. [Id.]. Upon arrival, Ms. Kay Page Greaser notified Albert that the Hartford Marathon Foundation had obtained a permit to use the Riverfront Plaza for the Red Nose Run and that the demonstrators continued to obstruct. [7d]. Albert ordered Officer Hart to arrest Oatis and Zalaski. Oatis and Zalaski were handcuffed, placed in a police car and transported to lock up for detention and processing. The charges against Oatis and Zalaski were dismissed on May 2, 2006. [Id.]. Based on the testimonial and documentary evidence introduced at the trial the Court finds the following additional facts to have been proven by a fair preponderance of the evidence. Beth Shluger is the CEO and Executive Director of the Hartford Marathon Foundation, Inc. (the “Marathon Foundation”), a non-profit organization which sponsors events to promote fitness and health such as organizing marathons, triathlons and duathlons. Shluger was approached by Kay Paige Greaser the President of Large & Page Communications, Inc. a public relations firm about the Red Nose Run event. Greaser’s client was Feld Entertainment the parent company to Ringling Brothers and Barnum and Bailey Circus and the sponsor for the Red Nose Run. Greaser contracted with the Marathon Foundation to co-organize the Red Nose Run. The Marathon Foundation was responsible for the planning, implementation and logistics for the race portion of the event. Greaser and Shluger worked together to plan and execute the event and were the primary event organizers. The Red Nose Run was held at the Mortensen Riverfront Plaza. The Riverfront Plaza is owned by the City of Hartford but leased to Riverfront Recapture, Inc., a private non-profit organization, which was created in 1981 to restore public access to the Connecticut River. Pursuant to the Lease Agreement, Riverfront Recapture, Inc. (“Riverfront Recapture” or “RRI”) manages and operates Mortensen Riverfront Plaza. See Defendant’s Ex. D. Joseph Marfuggi has been the President and CEO of Riverfront Recapture for 25 years. Marfuggi testified that Riverfront Recapture is responsible for raising money to fund, develop, design and manage the parks and recreation space along the Connecticut River for the city of Hartford and the town of East Hartford. His testimony is corroborated by the Lease Agreement as discussed more fully below. Riverfront Recapture hosts a wide variety of cultural and sporting events at its parks. In addition, Riverfront Recapture will also host private events such weddings, receptions and charity walks. Marfuggi testified that the general public uses the Plaza for recreation and that the Plaza contains benches for people to sit and read. Marfuggi also testified that the Plaza is generally open to the public. The Lease Agreement between the City of Hartford and Riverfront Recapture provides that the City of Hartford and Riverfront Recapture “wish to generate active and passive uses of the Riverfront Park for the general public.” Section 2.8 expressly states that “[rjesidents of the City shall retain the same access to Riverfront Park as such residents had before this Agreement was executed, except as otherwise provided.” See Defendant’s Ex. D. at Section 2.8. The Lease also provides that Riverfront Recapture “shall promote, organize and implement, directly or by contract, concessions and attractions, such as cruise boats, water taxis ... and private events.” See Id. at Section 2.2(b). In addition, the Lease states that “RRI may impose and collect fees for events or activities for particular groups or persons which are not open to the public. Such fees and charges shall be a source of revenue for RRI to defray in part the costs of managing and promoting the use of Riverfront Park and the costs of any maintenance services for the event or activity. Any such event or activity shall be limited to a designated area of the Riverfront Park.” Id. at Section 2.9(c). Under the Lease Agreement, the City retains the “authority to grant any permits required for activities or special events located within its boundaries, whether sponsored by the City, RRI or other person or entity” and that the “City will continue to waive all permit charges for activities and special events sponsored by RRI and which are open to the public.” See Defendant’s Ex. D. at Section 2.7. In addition, the City’s permit application states that “certain events are eligible for a fee waiver of up to 50%” and that “[Consideration for a fee waiver is based on the cost for city services to support the event, the organization sponsoring the event, and the goals of the sponsor.” See Defendant’s Ex. C at p. 13. The permit application expressly notes that “[fjundraisers for another organization may not be eligible for a fee waiver.” Id. Mortensen Riverfront Plaza is elevated over Interstate Highway 91 and can be accessed from a set of stairs at the corner of Columbus Blvd. and State Street in Hartford, Connecticut. At the entrance, there are signs indicating that one is entering a “Riverfront Recapture Park.” See Plaintiffs’ Ex. 2b(l). There is also a sign stating “Welcome to Mortensen Riverfront Plaza — the centerpiece of the Riverfront parks.” See Plaintiffs’ Ex. 2b(5). From the set of stairs, there is a paved walkway leading out to the riverfront. One side of the walkway is bordered by a concrete wall that also functions as a bench. Behind the concrete wall/bench there is a row of trees. The other side of the walkway is bordered by an area of grass and trees. There are stand-alone benches located in the grassy area. Prior to reaching the river, the walkway bends towards the left and proceeds to a bridge which provides a path over the Connecticut River. At the point where the walkway bends to the left, the concrete wall/ bench ends and there is a triangular raised patio which borders the walkway on the right. The patio is raised several feet above the walkway. There are three steps leading up to the patio from the walkway. See Plaintiffs’ Ex. 2e(9). The triangular patio is bordered on two of its sides by a wrought-iron fence and only one side of the patio faces and is open to the walkway. The area of grass and trees bordering the other side of the walkway increases in size where the concrete wall/bench ends and the raised patio begins. The Red Nose Run was a fundraiser for the Boys and Girls Club of Hartford. The event was attended by approximately 300 people, 200 of which were children, some of whom were as young as four. It consisted of a series of races for children. There was a 50 yard dash, a quarter mile, a half mile and then a mile run. There were different races of each length devoted to a particular age group. Racers were permitted to run in multiple races. The first race was scheduled to begin at 1:00 pm. The event organizers had secured permission to erect a tent on the raised patio area in the Plaza. The tent was the central gathering place for attendees. It was the location where participants would register for the race or sign in. After each race was completed, prizes and food were distributed from the tent to the race participants. The event organizers also invited the radio station Hot 93.7 to be at the event and provide music for the participants. All of the races began towards the entrance to the Plaza by the steps leading up from Columbus Blvd. The children would run down the walkway towards the riverfront and would run past the triangular raised patio where the registration tent was located and on towards the bridge that crossed the Connecticut River. Many of the same children participated in multiple races. After one race was completed, the children and parents would congregate back towards the beginning of the Plaza to line up for the start of the next race. After the races were completed, the children and parents would proceed to the registration tent for the food and prizes that were been handed out. ARF is a small non-profit animal rights organization whose mission is to secure the fundamental rights of every animal to live a life independent of human abuse. ARF was founded by William Manetti in 1982 and incorporated under the laws of Connecticut as a 501(c)(3) non-profit corporation. Plaintiffs Zalaski and Oatis are long standing members of ARF. The following five members of ARF protested at the Red Nose Run: Plaintiff Zalaski, Plaintiff Oatis, Karen Laski, William Manetti and Arlene Corey. Karen Laski videotaped about 20 minutes of the Red Nose Run event. The video recording is not continuous in time. See Plaintiffs’ Ex. 1. The members of ARF were present at the Red Nose Run event for approximately one hour. They arrived at the event shortly after noon and were present before the first race began. Plaintiffs’ speech at the Red Nose Run event expressed their belief that the circus’s use and treatment of animals is cruel and abusive. Plaintiffs held a 6 feet by 4 feet banner which stated “Got Freedom? The Animals’ Don’t....” See Plaintiffs’ Ex. 2b(ll). William Manetti and Arlene Corey held a comparably sized banner stating “The Saddest Show on Earth” and depicting an elephant crying. See Plaintiffs’ Ex. 2b(8). William Manetti was also holding a separate smaller sign stating “Animal Abuse.... Boycott Animal Circuses” with the depiction of three elephants standing on drums. Arlene Corey was dressed as a “sad clown”-at the event. William Manetti testified that ARF members would occasionally dress as “sad clowns” at circus protests to convey their belief that circuses are sad places for the animals. Karen Laski, who was recording the video of the event, and Plaintiff Zalaski can be heard on the video expressing the following statements to passersby and participants of the event: (1) “teach your kids compassion instead of cruelty,” (2) “circus is a dirty word nowadays,” (3) “children learn nothing about animals through the circus, they learn domination and cruelty, teach your children compassion not cruelty,” (4) “don’t sponsor cruelty,” (5) “cruelty is not entertainment,” (6) “have a compassionate marathon,” (7) “a marathon that teaches children compassion not cruelty,” (8) “think of something better to do Hartford Marathon Group, you can do better than this,” (9) “you can do much better than this and you know it,” (10) “that’s real good music for kids. No kidding jesh. You want to listen to 92.7,” (11) “Ringling just wants to sell tickets that is the only reason they are here,” and (12) “children love animals they don’t want them to suffer.” See Plaintiffs Ex. 1. During the Red Nose Run, several other animal rights protestors unrelated or unaffiliated with ARF were also present. Several protestors holding People for the Ethical Treatment of Animals (“PETA”) signs were present as well as members of another small local animal rights group. Upon arriving at the red nose run event, Manetti and Corey decided to stand with their banners in the corner where the concrete wall /bench ended and the triangular raised patio began. Their position was tucked into the corner of the walkway just before the steps of the raised patio began and where the walkway began to bend leftwards. Zalaski and Oatis decided to stand with their banner in front of the steps of the raised patio immediately adjacent to the entrance of the registration tent which was just three steps up on the patio. Since the banner that Zalaski and Oatis were holding was approximately 6 feet by 4 feet, Zalaski and Oatis were occupying a significant width of the stairs leading to the raised patio area. Zalaski testified that she thought that this location in front of the raised patio was “ideal” as their banner would be in the direct line of sight of the children running in the race and to anyone walking towards the riverfront down the walkway. Ms. Greaser received complaints from several participants in the Red Nose Run about the animal rights protestors. Ms. Greaser then asked Oatis to relocate from his position in front of the steps to the raised patio. Oatis refused to move. Ms. Greaser then asked a park ranger to speak with all the animal rights protestors at the event. The other animal rights protestors unaffiliated with ARF complied with the Park Ranger’s request and they lined up along the grassy border on the other side of the walkway from the raised patio area. Oatis again refused to move after speaking with the park ranger. Oatis and Zalaski remained in front of the steps leading up to the registration tent while Manetti and Corey remained in the corner where the patio begins and the concrete wall ends. Ms. Greaser then called the Hartford Police Department. Defendant Albert, who was a Sergeant with the Hartford Police Department at the time of the incident, responded to the dispatch. When he arrived at the Plaza, he encountered Ms. Greaser and Ms. Shluger who informed him that they had a permit for the Plaza. Ms. Shluger and Ms. Greaser explained that they were holding a children’s run and that some of the animal rights protestors were obstructing the raised patio which held the registration tent. Albert then approached Oatis as he appeared to be the leader of the protestors and the focal point. Plaintiffs’ video footage begins at some point during this initial encounter between Albert and Oatis. See Plaintiffs’ Ex. 1. The video footage begins with Oatis giving his card to Defendant Albert and identifying himself as an attorney. Oatis tells Albert that he doesn’t know how they are interfering with the event. He tells him that “we haven’t moved from the place we are in now, we are not blocking pedestrian traffic and this a public walkway ... we don’t have to get off the sidewalk. The sidewalk is public property ... Believe me I am making sure we are standing where we need to stand. If we are not then I will direct people to move.” Albert requests that Oatis and Zalaski move up on the stairs. Beth Shluger then expresses concern with Albert’s request that they move up onto the stairs. Shluger states “no they cannot be on the stairs, this is our registration area, they can be over there” while pointing to the grassy border section of the Plaza where the other animal rights protestors are standing. In response, Oatis states that they will stand up against the walkway. Shluger takes concern with Oatis’s suggestion and explains that she is going to have kids starting down the walkway and running across that area. She tells Oatis that “you need to just not be on the pavement.” Defendant Albert also states that “the kids are having a race here” in response to Oatis’s suggestion that they stand up against the walkway. Oatis then says he is going to stand on the steps since this is still a public area. He tells Shluger that “you have a permit to be here but you don’t have a right to exclude the public from being here.” Shluger tells Oatis that “I am just asking you to work with me” and Oatis responds that “I am too.” Shluger again asks Oatis to stand on the other side of the walkway on the grassy border. Albert also asks them to move to that area and states “how about over there that is where they were going to go in the first place.” Oatis responds that he needs people to read the signs and that he wants to get their fronts and eyeballs not their backs. Shluger responds they will still be facing all the people if they moved across the walkway. Oatis disagrees and argues that since the people will be running down the walkway that he wants them seeing the signs when they come. Oatis promises that they will not get in the way and states that “the last thing we are going to do is have some kids trip on each other” or “have something bad happen.” Greaser states that we need this “whole space to sign up and line up.” Albert then notes to Oatis that Shluger and Greaser have a permit which allows them to use that area for the tent. Sometime during this initial conversation, Oatis and Zalaski move up to stand on the first step leading up to the raised patio. The video does not appear to capture the end of Albert and Oatis’s initial conversation. Albert testified that after initially speaking with Greaser, Shluger and then Oatis he was not sure how the event was going to unfold. He was not sure of how the races were going to work and how the event would play out. He testified that after his initial conversation with Oatis, he did not request that Oatis and Zalaski move off the steps at that point. He was “slow to act” because he wanted to observe the event to assess how the event would function and determine the appropriate course of action under the circumstances. Albert testified that he was concerned with accommodating the protestors’ rights to demonstrate as well as the event organizers rights, including their right to conduct the permitted event. Albert testified that after watching the first wave of races, he came to a better understanding of how the event would function and understood that after the races ended the children and their parents would be coming back and congregating at the registration tent. Albert testified that he was concerned that more and more people would be coming into the raised patio ■ area to reach the registration tent as the races ended. Albert observed that after the first children’s race ended more people were moving into the registration tent area. He also observed children and their parents walking around Oatis, Zalaski and the banner they were holding to reach the registration tent. After the quarter-mile run had begun, Albert approached Oatis and Zalaski and asked them to move off the steps away from the registration tent where the children and their parents were beginning to congregate and relocate to the other side of the walkway on the grassy border where the other protestors were standing. At this point, Zalaski and Oatis had moved up onto the second step of the raised patio area and were standing just one step below the registration tent. They are standing immediately adjacent to the entrance of the registration tent and were occupying a significant width of the stairs leading to the raised patio area. Albert testified that he spoke with Oatis for approximately five minutes and that he asked him three or four times to move. When Oatis and Zalaski refused to move, Albert instructed Officer Hart to arrest them. Plaintiffs’ video only recorded the very end of Albert’s interaction with Oatis and Zalaski and did not capture any of the conversation between Albert and Oatis leading up the arrest. On the video recording, Defendant Albert maintains a calm demeanor throughout his entire encounter with the Plaintiffs including throughout the arrest. His tone of voice is respectful and composed. Plaintiff Zalaski also testified that Defendant Albert was polite and courteous towards them and exhibited no malice towards her or anyone else that day. Plaintiff Zalaski testified that Albert did not speak with her directly. On the video recording immediately prior to the arrest, Zalaski can be heard stating to Officer Hart and Defendant Albert “they have all been running through what do you want” and “arrest me too.” Defendant Albert testified that he mainly conversed with Oatis as Oatis represented that he was the spokesperson of the group. It is clear from the video recording that while Albert is interacting primarily with Oatis that his request for them to move off the steps was both directed and audible to Zalaski who was standing just several feet away from Oatis holding the opposite end of the six foot wide banner. Albert testified that he believed there was probable cause to arrest Plaintiffs on the basis of criminal trespass or obstructing free passage. Between 1997 and 2006, Zalaski protested the Ringling Brothers circus performances in New Haven and Hartford. In 2007, Zalaski protested the Ringling Brothers circus performances in Hartford and Bridgeport. She was arrested at the Bridgeport Ringling Brothers protest in the fall of 2007. Zalaski also protested at the Hartford Red Nose Run event held in 2007. At the 2007 Red Nose Run, Zalaski testified that she chose to stand on the other side of the walkway by the grassy border and did not try to stand on the steps of the raised patio by the registration tent as she had done in 2006. In 2008, Zalaski protested at three Hartford Marathon events that had a tie in to the circus, but did not protest the Ringling Brothers circus performance that year. In 2009, she protested the Ringling Brothers circus at the XL center in Hartford. After 2009, she stopped attending circus protests. IV. Conclusions of Law a. General First Amendment Claim The City of Hartford bears the burden of proving the constitutionality of its actions effecting protected First Amendment speech. See e.g., U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.”); Greater New Orleans Broadcasting Ass’n., Inc. v. United States, 527 U.S. 173, 183, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999) (“[T]he Government bears the burden of identifying a substantial interest and justifying the challenged restriction”); Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, — U.S. -, 131 S.Ct. 2806, 2817, 180 L.Ed.2d 664 (2011) (“Laws that burden political speech are accordingly subject to strict scrutiny, which requires the government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.”) (internal quotation marks and citations omitted); Deegan v. City of Ithaca, 444 F.3d 135, 142 (“In a First Amendment challenge, the government bears the burden of showing that its restriction of speech is justified under the traditional ‘narrowly tailored’ test”) (internal quotation marks and citation omitted); see also Marcavage v. City of Philadelphia, Pennsylvania, 271 Fed.Appx. 272, 274 (3d Cir. 2008) (holding that it was the Government’s not the Plaintiffs burden to prove that restrictions were not content-based). i. Plaintiffs’ speech was on a matter of public concern As the Supreme Court held the “First Amendment reflects a profound national commitment to the principal that debate on public issues should be uninhibited, robust and wide-open. That is because speech concerning public affairs is more than self-expression; it is the essence of self-government. Accordingly, speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, — U.S. -, 131 S.Ct. 1207, 1215, 179 L.Ed.2d 172 (2011) (internal quotation marks and citations omitted). “[W]here matters of purely private significance are at issue, First Amendment protections are often less rigorous.” Id. (internal quotation marks and citations omitted). The Supreme Court has instructed that “[s]peech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Id. at 1216 (internal quotation marks and citations omitted). The majority of Plaintiffs’ speech at the Red Nose Run, as evidenced by the banners and signs that Plaintiffs carried, Plaintiffs’ testimony at trial and the video recording of the event, centered on Plaintiffs’ concerns for the ethical and humane treatment of animals at the circus and reflected Plaintiffs’ belief that circuses were sad places for animals. ARF members held banners with the slogans (1) “Got Freedom? The Animals’ Don’t....,” (2) “The Saddest Show on Earth,” and (3) “Animal Abuse.... Boycott Animal Circuses” See Plaintiffs’ Exs. 1, 2b(ll) and 2b(8). ARF members expressed the following statements to passersby and participants during the event: (1) “children learn nothing about animals through the circus, they learn domination and cruelty,” and (2) “Ringling just wants to sell tickets that is the only reason they are here.” See Plaintiffs Ex. 1. Clearly, the majority Plaintiffs’ speech related to a matter of social or other public concern rather than a matter of “purely private concern” and is therefore protected speech under the First Amendment. ii. Riverfront Plaza is a traditional public forum The protection afforded speech under the First Amendment is a function of both the type of speech and the place where the speech is uttered. “It is well established that ‘the government need not permit all forms of speech on property that it owns and controls.’ ” Byrne v. Rutledge, 623 F.3d 46, 53 (2d Cir.2010) (quoting Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992)). “Under the prevailing constitutional framework, speech restrictions imposed on government-owned property are analyzed under a ‘forum-based’ approach that divides government property into three categories-the traditional public forum, the designated public forum, and the nonpublic forum.” Id. “As a general matter, the government is permitted to exercise control over the public’s use of government-owned property for expressive purposes, and the degree of control permitted depends upon the nature of the property and the speech restrictions imposed thereon.” Hotel Employees & Restaurant Employees Union v. City of New York Dept. of Parks and Recreation, 311 F.3d 534, 544 (2d Cir.2002). The first category of government-owned property is the “traditional” public forum, which is defined as a forum that has “traditionally been available for public expression” and has as “a principal purpose ... the free exchange of ideas.” Hotel Employees, 311 F.3d at 544 (internal citations omitted). Examples of public fora are “streets, sidewalks, and parks, which are properties that have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Id. at 544-45 (internal quotation marks and citations omitted). Content-based restrictions on speech in such fora are subject to “strict scrutiny,” meaning that they “must serve a compelling government interest and be narrowly tailored to achieve that interest.” Id. at 545. “The government may, however, impose content-neutral time, place and manner restrictions on speech in a traditional public forum so long as those restrictions are ‘narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communications.’ ” Id. (citation omitted). The second category of government-owned property is the “designated” public forum, which is “a non-public forum that the government has opened for all types of expressive activity.” Id. As is the case with traditional public fora, restrictions on speech in designated public fora are constitutional only if they are “content-neutral time, place, and manner restrictions that are (1) necessary to serve a compelling state interest and (2) narrowly drawn to achieve that interest.” Id. (internal quotation marks and citation omitted). The “limited” public forum is a subset of the designated public forum which exists “where the government opens a non-public forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.” Id. “In limited public fora, strict scrutiny is accorded only to restrictions on speech that fall within the designated category for which the forum has been opened.” Id. “Thus, in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.” Id. at 545-46. If expressive activity does not fall within the limited category for which the forum has been opened, “restrictions need only be viewpoint neutral and reasonable.” Id. at 546. The third category of government-owned property consists of “property that the government has not opened for expressive activity by members of the public.” Id. “In a nonpublic forum, the government has “maximum control over communicative behavior.”” Byrne, 623 F.3d at 53. “The government may restrict speech in non-public fora subject only to the requirements of reasonableness and viewpoint neutrality.” Hotel Employees, 311 F.3d at 546. Examples of nonpublic fora are airport terminals, military bases and restricted access military stores, jailhouse grounds, and the Meadowland Sports Complex. Id. “The government enjoys greater latitude in restricting speech in a nonpublic forum and may limit access or content ‘based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.’ ” Byrne, 623 F.3d at 54 (quoting Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). The Second Circuit has instructed that “[i]n conducting forum analysis, we examine a variety of factors, including the forum’s physical characteristics and the context of the property’s use, including its location and purpose.” Zalaski v. City of Bridgeport Police Dept., 613 F.3d 336, 342 (2d Cir.2010) (internal quotation marks and citation omitted). The “primary factor in determining whether property owned or controlled by the government is a public forum is how the locale is used. Also relevant is the government’s intent in constructing the space and its need for controlling expressive activities on the property, as evidenced by its policies or regulations ... Finally, we consider whether the property in question is part of a class of property which by history or tradition has been open and used for expressive activity.” Id. (internal quotation marks and citations omitted). In Hotel Employees, the Second Circuit has expounded on the factors a court conducting a forum analysis should consider: (1) “whether the [property] falls within those categories of property historically deemed to be traditional public fora,” (2) “whether it is the type of property that should be so classified given its physical characteristics, (3) the objective ways it is used, and (4) the City’s intent in constructing and opening it to the public.” 311 F.3d 534, 536-37 (emphasis in the original). While Riverfront Plaza is owned by the City of Hartford and leased to a private non-profit corporation, these facts are not dispositive as to whether Riverfront Plaza is public or nonpublic forum. The City leased the park to a private nonprofit corporation, whose mission was to further the use and enjoyment of the space by the public. Consequently, the Lease does not convert the area from a public forum to a non-public forum. While the Second Circuit has not ruled on this issue on the facts presented here, the Ninth Circuit’s decision in ACLU v. City of Las Vegas, 333 F.3d 1092 (9th Cir.2003) arose out of similar facts and is particularly instructive and persuasive. The Ninth Circuit in recognizing that the First Amendment “must deal with new problems in a changing world” found that an area of street in downtown Las Vegas which had been leased to a private limited liability corporation by the City constituted a traditional public forum as “the street continued] to play its old role as a pedestrian thoroughfare.” Id. at 1094-95. The Ninth Circuit noted that there is no “clear-cut test” to determine whether a public forum exists but that “the factors emphasized by the courts consistently reflect two underlying considerations.” Id. at 1999-1100. “First, and most significantly, there is a common concern for the compatibility of the uses of the forum with expressive activity.” Id. at 1100 (citing Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (“The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.”)). “Secondly, the case law demonstrates a commitment by the courts to guarding speakers’ reasonable expectations that their speech will be protected.” Id. (citing U.S. v. Grace, 461 U.S. 171, 180, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (expressing concern regarding allegedly nonpublic forums that provide “no separation ... and no indication whatever to persons ... that they have entered some special type of enclave.”)). However considering the long standing precedent permitting content-neutral time, place manner restrictions, a speaker cannot have a reasonable expectation that their speech will be protected where that speaker obstructs or disrupts the use of a traditional public forum by creating a hazard. The Ninth Circuit found that the area in question was being used for open public access or as a public thoroughfare and that such uses are inherently compatible with expressive activity. Id. The Ninth Circuit therefore concluded that the use and purpose of the area as well as its physical characteristics supported the conclusion that the area was a traditional public forum regardless of the fact that the particular area was leased to a private corporation. See also Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd., 257 F.3d 937, 943-44 (9th Cir.2001) (highlighting cases where private property is deemed to constitute traditional public fora); Citizens to End Animal Suffering & Exploitation, Inc. v. Faneuil Hall Marketplace, Inc., 745 F.Supp. 65, 75-76 (D.Mass.1990) (area leased by city to a mall constituted public forum). The Ninth Circuit’s findings turned on its analysis of the traditional factors applied in the circuit to determine whether a forum should be considered a traditional public forum without regard to the fact that the forum in question was actually leased to a private corporation. Accordingly, this Court’s analysis regarding whether Riverfront Plaza is a public forum will focus on the traditional Second Circuit factors. These factors are based on an assessment on how the forum is actually used as opposed to the fact of ownership or leased status in this case taking into consideration the Supreme Court’s concern to protect speakers’ reasonable expectations regarding their speech. See Grace, 461 U.S. at 180, 103 S.Ct. 1702 (expressing concern where there is “no separation ... and no indication whatever to persons ... that they have entered some special type of enclave.”). To the extent that the Lease Agreement reflects on how the forum was used or was intended to be used, then the Lease Agreement contains information that is pertinent to the Court’s analysis. The physical characteristics of Riverfront Plaza suggest that the space is being used as and has been conceived of as a traditional park and therefore should be classified as a traditional public forum. Riverfront Plaza is open to the public, there are benches throughout the Plaza for people to sit and read on, and there is a scenic walkway for people to stroll and run along surrounded by grass and trees. Further, the objective way the Plaza is used is that of a traditional park. Joseph Marfuggi testified that the general public uses the Plaza for recreation, to sit and read in, and to mill about. Further, the terms of the Lease Agreement between Riverfront Recapture and the City of Hartford are indicative of the government’s intent in constructing the space and opening it to the public. The Lease Agreement expressly provides that the “[residents of the City shall retain the same access to Riverfront Park as such residents had before this Agreement was executed” and that the City of Hartford and Riverfront Recapture “wish to generate active and passive uses of the Riverfront Park for the general public.” See Defendant’s Ex. D. Further, the Lease provides that Riverfront Recapture should collect fees and charges for events or activities as a source of revenue for the use and maintenance of Riverfront Plaza. See id. at Section 2.9(c). Accordingly, the terms of the Lease illustrate that it is the City’s intent that Riverfront Plaza be used as a traditional park for the general public. This intent is also illustrated by the fact that at the entrance to the Plaza there are large signs announcing that one is entering a “Riverfront Recapture park” and welcoming the public to “Mortensen Riverfront Plaza — the centerpiece of the Riverfront parks.” See Plaintiffs’ Ex. 2b(l) and Ex. 2b(5). A space like Riverfront Plaza also falls into the category of property that has historically been deemed to be a traditional public forum. In fact, parks are routinely given by courts as an example of a quintessential traditional public forum. The Supreme Court has referred to “streets, sidewalks, and parks” as “properties that ‘have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ ” Hotel Employees, 311 F.3d at 544-15 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)); Pleasant Grove City v. Summum, 555 U.S. 460, 464, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (“[A] park is a traditional public forum for speeches and other transitory expressive acts.”). Here since Riverfront Plaza is used by the general public as a park, it is therefore compatible with expressive activity. See City of Las Vegas, 333 F.3d at 1101 (“[W]hen a property is used for open public access or as a public thoroughfare, we need not expressly consider the compatibility of expressive activity because these uses are inherently compatible with such activity.”) (citation omitted). However as will be discussed in more detail below, while Riverfront Plaza is a park which is generally compatible with expressive activity, since the raised patio area during the Red Nose Run was being used as a registration, prize and refreshment area, the Plaintiffs’ expressive activity, which impeded the physical and visual access to the area was not compatible with such use at the time of the Red Nose Run. As a consequence, a speaker who has walked into this space by virtue of the signs demarking the space as a park, the physical characteristics of the space, and how the space has been and is being used would have a reasonable expectation that their speech would be protected. Considering the characteristics of this particular forum, there would simply be no indication whatever to persons who have entered Riverfront Plaza that they had stumbled onto “some special type of enclave” and were not in a traditional public forum. See Grace, 461 U.S. at 171, 103 S.Ct. 1702. Here, Riverfront Plaza like the portion of the Las Vegas Street in City of Las Vegas still continues to play its old role as a park for the residents of Hartford to enjoy even though it has been leased to a private nonprofit corporation. Accordingly, the use, purpose, physical characteristics of the space and the City’s clear intent in constructing the Plaza to be a public space for recreation support the conclusion that Riverfront Plaza is a traditional public forum. The Court is cognizant that the Supreme Court and the Second Circuit have described a designated public forum and a limited public forum as non-public fora which the government has opened up for either all types of expressive activities or for only certain types of expressive activities. See Hotel Employees, 311 F.3d at 545. For Riverfront Plaza to be properly considered a limited or designated public forum, the Court would have to find that it was not a traditional public forum but rather a non-public forum which was opened up for expressive activity. The Second Circuit’s decision in Hotel Employees finding that the Lincoln Center Plaza was not a traditional public forum serves as an instructive counterpoint to the instant case. In Hotel Employees, the Second Circuit found that Lincoln Center Plaza was not a traditional public forum on the basis that it had not been dedicated as a city park and that its location and purpose was not similar to the types of properties that have historically been defined as traditional public fora. Id. at 550. The Court reasoned that Lincoln Center Plaza’s location and purpose was to serve as the centerpiece for and extension of the Lincoln Center performing arts complex and was therefore distinguishable from the “typical recreational park or town square.” Id. The Second Circuit concluded that “plazas that serve as forecourts in performing arts complexes are not the types of public spaces that have traditionally been dedicated to expressive uses, or in which the government’s ability to restrict speech has historically been circumscribed.” Id. at 551. Ultimately, the Second Circuit held that Lincoln Center Plaza “has not historically been open to all types of expression, and while it may share some of the same physical characteristics as sidewalks or parks, its primary function and purpose, together with its historical use, distinguish the Plaza from those types of properties that have heretofore been deemed traditional public fora.” Id. at 551 n. 12. In the instant case, Riverfront Plaza, unlike Lincoln Center Plaza, does not serve as a forecourt to a performing arts complex. Instead the primary purpose of Riverfront Plaza as evidenced by the terms of the Lease, its present and historical use and physical characteristics is that of a public park for general recreation. Such a property is exactly the type of property that has historically been deemed a traditional public forum. The Court therefore sees no basis to conclude that Riverfront Plaza is a nonpublic forum which has been opened for expressive activity. The Parties’ prior pleadings and the testimony submitted at trial focused on the fact that the Hartford Marathon Foundation had obtained a permit to stage the Red Nose Run and specifically had obtained permission to use the raised patio area for their registration tent, suggesting that the issuance of that permit converted Riverfront Plaza into a non-public forum. The City expressly reserved the right in the Lease Agreement with Riverfront Recapture to issue permits to private groups to use the park. See Defendant’s Ex. D at Section 2.9(c). Id. Although our circuit has not had occasion to rule on this issue, other circuits have held that the “issuance of a permit to use [a] public forum does not transform its status as a public forum.” See e.g., Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d 183 (3d Cir.2008); Parks v. City of Columbus, 395 F.3d 643 (6th Cir.2005); Pledge of Resistance v. We the People 200, Inc., 665 F.Supp. 414, 417 (E.D.Pa.1987) (“the existence of a permit to use a public forum cannot justify excluding protected expression unless the protected activity will cause actual disruption of the events covered by the permit”). In Parks v. City of Columbus, 395 F.3d 643 (6th Cir.2005), the city issued a permit to the Columbus Arts Council to stage an arts festival open to the general public that was held along the riverfront in downtown Columbus, Ohio. The Sixth Circuit overturned the district court’s conclusion that the permit had the effect of transforming the streets along the riverfront into a limited public forum for a limited period of time. Id. at 649-50. In coming to this conclusion, the Sixth Circuit noted that the “City cannot transform a traditional public forum simply because it so desires.” Id. at 650 n. 5. The Sixth Circuit found that “[t]he city cannot claim that one’s constitutionally protected rights disappear [where] a private party is hosting an event that remained free and open to the public.” Id. at 652. In that case, the plaintiff “attempted to exercise his First Amendment free speech rights at an arts festival open to all that was held on the streets of downtown Columbus. Under these circumstances, the streets remained a traditional public forum notwithstanding the special permit that was issued to the Arts Council.” Id. In Startzell, a private non-profit organization had organized and obtained a permit to conduct a gay pride event which took place on the streets and sidewalks in Philadelphia. 533 F.3d 183 (3d Cir.2008). The Third Circuit reasoned that since the event took place in an “undisputed quintessential public forum” that the issuance of the permit could not “transform its status as a public forum.” Id. at 196. The Startzell court emphasized that the principle that streets and parks “ ‘have immemorially been held in trust for the use of the public’... has been reiterated in case after case” and found that the grant of a permit did not “alter[ ] that still viable principle.” Id. at 195-196 (internal quotation marks and citation omitted). In coming to this conclusion, the Third Circuit referenced the “long line of authority upholding free access by the general public to street festivals and other events held in traditional public fora.” Id. (citations omitted). The Startzell Court also pointed to the Supreme Court’s decision in Grace, 461 U.S. at 177, 103 S.Ct. 1702 for the proposition that the government “may not by its own ipse dixit destroy the ‘public forum’ status of streets and parks which have historically been public forums.” 461 U.S. at 179, 103 S.Ct. 1702. (internal quotation marks and citation omitted). In Grace, the Supreme Court held that a statute prohibiting the display in the Supreme Court building or on its grounds any flag, banner or device designed or adapted to bring into public notice any party, organization or movement was unconstitutional. Since the statute at issue extended to the public sidewalks surrounding the Supreme Court building, the Supreme Court found that the “inclusion of the public sidewalks [in the statute] ... resulted] in the destruction of public forum status that [wa]s at least presumptively impermissible.” Id. at 180, 103 S.Ct. 1702. The Supreme Court emphasized that “[traditional public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason it abuts government property that has been dedicated to a use other than as a forum for public expression. Nor may the government transform the character of the property by the expedient of including within a statutory definition of which might be considered a non-public forum parcel of property.” Id. Further, the Supreme Court has emphasized that the “streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” Hudgens v. NLRB, 424 U.S. 507, 515, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) (internal quotation marks and citation omitted). The Court agrees with these cases holding that the issuance of a permit to use a public forum does not necessarily transform its status as a public forum. Although the Red Nose Run organizers had obtained a permit to use Riverfront Plaza for the event, the event was open to the public and situated in a space that has “immemorially been held in trust for the use of the public” as was the case in both StaHzell and Parks. The City has not cited and the Court has not found any legal authority that a permit allowing a private party to stage a public event has the effect of destroying the historical public forum status traditionally bestowed on parks and streets. Much like the sidewalks in Grace which did not lose their public forum status because they abutted government property not dedicated for public expression or were included within a statutory definition, Riverfront Plaza did not lose its public forum status because there was a permit for the Red Nose Run. If a city could on any given day destroy the traditional public forum status of a park on the basis of a permit that would have the effect of undermining and not guarding speakers’ reasonable expectations that their speech would be protected. As the Sixth Circuit in Startzell noted the principle that streets and parks have immemorially been held in trust for the use of the public discourse is well established. 533 F.3d at 195. To hold that a permit could destroy a park’s quintessential public forum status would fatally undermine this long standing and cornerstone principle of First Amendment law. Accordingly, the Court finds that Riverfront Plaza is a traditional public forum. Having determined that Riverfront Plaza was a public forum, the Court now turns to the question of whether the speech restriction imposed by the City passes constitutional muster. iii. Defendant’s actions were a content-neutral time place manner restriction It is well established that in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech; “the United States Supreme Court has articulated a three-part test to determine whether such restrictions interfere with rights guaranteed by the First Amendment.” Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.2011) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). “To withstand constitutional scrutiny, government restrictions must be (1) content neutral, in that they target some quality other than substantive expression; (2) narrowly tailored to serve a significant governmental interest; and (3) permit alternative channels for expression.” Deegan, 444 F.3d at 142 (citing Ward, 491 U.S. at 791, 109 S.Ct. 2746). The “ ‘principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.’ ” Int’l Action Center v. City of New York, 587 F.3d 521, 526 (2d Cir.2009) (quoting Ward, 491 U.S. at 781, 109 S.Ct. 2746). A regulation “justified without reference to the content of the regulated speech” is content neutral. Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir.2006) (internal quotation marks and citation omitted). A content-neutral time, place, or manner restriction generally “need not be the least restrictive or least intrusive means” of serving the government’s legitimate interests. Ward, 491 U.S. at 798, 109 S.Ct. 2746. Narrow tailoring “is satisfied so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government’s legitimate interests.” Id. at 799, 109 S.Ct. 2746 (internal citations and quotations omitted). The Second Circuit has instructed that “a content-neutral regulation furthering a legitimate government interest and imposing only an incidental burden on speech will be narrowly-tailored ‘if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’ ” Five Borough Bicycle Club v. City of New York, 308 Fed.Appx. 511, 513 (2d Cir.2009) (quoting Vincenty v. Bloomberg, 47