Judge Allows First Amendment Trial

File Photos A federal judge has ruled that a local anti-police-brutality activist has a legitimate free-speech argument to present to a jury about why a former top cop barred her from a weekly “CompStat” data-sharing meeting.

U.S. District Court Judge Stefan R. Underhill, a Clinton appointee, agreed in a decision released last week that activist Barbara Fair’s First Amendment rights might have been infringed and the case should proceed. The city had sought to have the case dismissed.

Underhill ruled that Fair may proceed to seek changes in policy through her suit, but not any money.

The alleged violation stems from a spat two years ago, when the former police chief, Dean Esserman, temporarily shut community members out of the weekly CompStat meetings, after cops complained that Fair used them as a venue to protest the department’s treatment of minority communities. Fair contended that Esserman was trying to bar her from meetings until controversy blew over.  The day Esserman barred the public from the meeting
— spurred on by discomfort of some of his officers with the presence of a vocal anti-police-brutality activist— he also allowed another member of the community, preacher pal Rev. Boise Kimber, to come upstairs and attend.

In his ruling, Underhill squelched Fair’s pursuit of damages, but he agreed to hear her case on injunctive relief. To win the case, the longtime activist must prove that Esserman disliked the content of her speech, rather than the manner in which she gave it, and that he intended to cut off public participation until activists lost interest in using the meeting to speak out.

Fair has continued to speak out publicly against police misbehavior and clash with the department. The police arrested her July 8 for allegedly refusing an order to keep her distance when they were arresting her nephew at a counterdemonstration against a white nationalist recruiting event on the Green. (She denied the allegation.)

And Compstat meetings, less elaborate affairs since Esserman departed the department, are open to the public again.

Fair’s attorney, Norm Pattis, called the judge’s green-lighting of a trial an early win.

“Any time that a jury can can [evaluate the conduct of a police officer], that’s good to do for the republic,” he said. “We hope that never again will [the police] decide that some members of the public aren’t entitled to attend a meeting, when they have invited the public in general. When the community is given a chance to speak, the police department can’t put stoppers on it based on the content of what it’s hearing.”

As part of his community policing push, Esserman had opened up these weekly reviews of crime statistics and major cases, known as CompStat, to the public. (The name comes from “comparative statistics.”) The meetings revolve around reports from policing districts about crimes over the past week and plans for the upcoming week. Under Esserman, they expanded to include reports to and sometimes from the community, with dozens of local people joining the cops at headquarters on Thursday mornings to listen in on the department’s crime-fighting strategies. (The department brass review pending investigations in greater detail at daily intelligence briefings, which are closed to the public.)

“It was not,” however, “a forum for discussion,” Esserman stated in his deposition. “It was to let people see how the police department worked in a transparent way, and if people had presentations they wanted to make we would try to schedule them in.”

Fair sought to make it a forum. In March 2015, after video of a black 15-year-old’s takedown during an arrest emerged, Fair joined a protest in front of City Hall. There, she allegedly overheard cops and counter-protestors making racially charged remarks. Shortly after, Fair went to a CompStat meeting to speak up.

At the meeting’s end, she asked the assistant chief for permission to speak. (Esserman was absent.) Unrelated to any of the discussion that morning, she proceeded to criticize the department and called out the foul-mouthed officers. Fair said that one cop looked upset by her comments, but another officer told him to let Fair voice her concerns. “I know I ruffled some feathers,” she admitted in a follow-up email to the assistant chief. Still, no one present reprimanded her, asked her to sit down or escorted her out of the room.

Paul Bass Photo News later reached Esserman, though, that Fair had been “disruptive,” “loud,” and “argumentative.” When she returned to Union Avenue for Compstat the following week, Esserman asked Fair to leave, saying she had made people “very uncomfortable.” After an exchange, Fair said, “As long as it’s a public meeting, I’m going to sit here.” Esserman decided to close it all off.

Same thing the following week: Fair and State Sen. Gary Winfield couldn’t even get past the front desk to the meeting. (Rev. Kimber, on the other hand, a friend of the chief, was buzzed in and went upstairs to attend the meeting.) Esserman maintained in his response to the suit there was no ban on Fair’s attendance; she didn’t subsequently try to go back.

In his initial analysis of the evidence, in which he tried to give Fair’s arguments the best light possible, as a jury might similarly do, Judge Underhill explained that, to prove a First Amendment violation, the plaintiff must show (1) that her speech was protected by the Constitution, (2) that the forum was public and (3) that the justifications for excluding her speech weren’t up to snuff.

Fair’s speech, addressing racist strains in the police department, is clearly protected speech, Underhill wrote, referencing an established right to “complain to public officials.”

Likewise, Esserman’s “admittedly deliberate choice” to open prior CompStat meetings made them “limited public forums,” Underhill added. That’s true even though observers generally didn’t speak, he said. The judge cited a 1991 ruling about ACT UP’s intent to hold a silent protest in a state legislature’s gallery: “[T]he elected officials receive the message, by the very presence of citizens in the gallery, that they are being watched, that their decisions are being scrutinized, and that they may not act with impunity outside the watchful eyes of their constituents,” that precedent said.

Esserman argued that, since he opened the meetings, he could have closed them at any time.

Sure, Underhill wrote, that’s true of any public forum. “[H]owever, as long as the forum remains open, government regulations of speech within it must meet the standards of a public forum.”

Markeshia Ricks Photo What are those standards? Underhill said speech may be limited only by “content-neutral” regulations — time, manner, place — unless there’s a “compelling state interest.” In fact, he noted, Esserman might have been on surer footing if he had shut down the public participation entirely. But because the break was only temporary, it implied that the chief didn’t like what Fair had to say on a current event, the judge noted. He referenced several rulings that arbitrariness and unpredictability about when a forum is open to the public can easily cover up censorship, as in choosing to shut down a park on the day a particular person is scheduled to speak.

“It seems clear that a temporary shutdown intended to stifle discussion on a particular topic, with plans to reopen the forum after controversy surrounding that topic had been suppressed constitutes impermissible censorship under any First Amendment analysis,” Underhill wrote.

Esserman argued that the case is mooted, to some extent, because he’s no longer on the job. Indeed, at this past Thursday’s CompStat meeting, the new chief, Anthony Campbell, said the meetings are open to the public. The only restriction might be if journalists are asked not to publish information about an imminent apprehension, he said.

Pattis responded that the First Amendment rights at issue could crop up with any police chief, not just the last one. “What’s important is that the department realize that it has enduring obligations to the community, and that those do have the force of law behind them,” he said. “This will make sure Campbell isn’t tempted to do the same.”

A trial will likely be scheduled for sometime in the fall, Pattis said.

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Comments

posted by: wendy1 on July 18, 2017  12:33pm

I am fighting mad and my husband is pissing blood
Why does this town arrest an innocent woman who did nothing, did not touch a cop, etc.
Why haven’t they caught the home invader?
This town is not safe at night.
I hope the victim sues her landlord, a rich Guilford s*******—-that building is a dump.
Cityhall is in chaos—-the cops need to separate themselves and rethink their policies.  It’s time for Campbell to be brave and show us what a Harvard man can do for Yalesville.

posted by: robn on July 18, 2017  12:38pm

I don’t really think the general public should be at a meeting where police are discussing crime fighting strategy because organized criminals could infiltrate for their own benefit. That being said, if you have a public meeting where the subject matter is data gathering for law enforcement, that’s the subject matter, and someone with their own agenda shouldn’t be allowed to take over the meeting (including a semi-professional protester with ties to many known criminals.

posted by: wendy1 on July 18, 2017  12:46pm

Robyn,  you mean Rev. Kimber????

posted by: robn on July 18, 2017  1:16pm

W1,

Funny!

posted by: Brutus2011 on July 18, 2017  1:38pm

For those interested, here is the link to the opinion:

https://ecf.ctd.uscourts.gov/cgi-bin/show_public_doc?2015cv0681-61

I don’t know Barbara Fair but I think criticism of government is a good thing.

Our Framers put the bill of rights into fundamental law to protect citizens against arbitrary government action.

I agree with the judge’s decision.

posted by: robn on July 18, 2017  1:54pm

Underwood is wrong. Constituitonal protection of ones right to express a certain content would only be germaine if this was an open subject forum. The Compstat meeting was clearly a narrowly focussed meeting and public input was only sometimes taken at the end relative to the subject matter. Esserman was right to toss the rabble rouser.

posted by: T-ski1417 on July 18, 2017  2:00pm

@wendy1

Campbell is a Yale Grad not Harvard.

posted by: HewNaven on July 18, 2017  2:13pm

The fact that Fair would have used CompStat as an opportunity for dialogue AT LEAST proves the need for a regular forum about crime, citizens, and police, and how those things intersect in various ways. CMTs and the weak CRB are both goal-oriented and agenda-driven. We need something more like an OPEN discussion where anything can be brought up to our community leaders.

posted by: Dwightstreeter on July 18, 2017  3:15pm

@robn: the next time People Against Injustice sponsors a Workshop on the Freedom of Information Act, I urge you to sit in and learn. Government can’t shut down speech because it doesn’t like it.
Sliming an award winning activist because of her relatives, when it is apparent that her entire family has been targeted for harassment and/or arrest, is a low level response.
But maybe that’s easier than addressing issues of mass incarceration, solitary confinement or police violence.

posted by: FacChec on July 18, 2017  6:28pm

Kimber - Yes

Fair - NO

Verbatim:

Esserman: Unfortunately you were not proper here. This is a serious meeting we’re having about a homicide. And I’m asking you to please leave with me ... I’ll meet with you now downstairs.

Fair: I have a right to be at the meeting. It’s a public meeting.

Fair: Unless I’m under arrest, I will keep sitting here.

Esserman: Barbara, I’m asking you to please leave.

Fair: I’m asking you to please leave me alone. I’m at a public meeting.

Esserman: I’m not going to let you stay. I’m going to cancel it. I’m going to close the meeting to discuss the homicide, which is more important.

http://www.newhavenindependent.org/index.php/archives/entry/public_-_mostly_-_barred_from_compstat/

posted by: challenge on July 18, 2017  6:53pm

@Robyn: You seem to have a deep personal issue with Barbara. You act as though if you were thirsty and she offered you water you would rather die than accept it. Your behavior is a little over the edge and makes your statements incredulous.  I’m inclined to suggest a good therapist. Try 211 infoline. Hope you get better.

posted by: eliantonio on July 18, 2017  8:29pm

Ms. Fair has done anything positive for the city or even her various neighborhoods.  Ive had the opportunity to hear her work with her and be at community meeting gs where she was present.
Not once did she present a realistic idea or plan for any idea or policy she was opposed to.
I understand that putting out stories with her are good for journalism because shes a lightning rod and people will read because they love it hate her, and having worked with her it’s easier to just let her have her way because shes persistent, but she has accomplished nothing of tangible positivity.

posted by: Ex-NHPD on July 18, 2017  8:41pm

The NHPD should have NEVER allowed CompStat (and TASCA before it) to be a fully open public meeting.  There is far too much “need to know” information being shared with people in the room who should not be privy to it.  As a compromise, if the NHPD wanted to keep the doors open to the public and the press, they should have instituted a 2 part meeting.  The first would be open to the public, the second to Law Enforcement only.  By not doing this, they created this problem.  And, Esserman, who always knows he is the smartest person in the room (just ask him, or he would tell you without asking) failed miserably in dealing with Fair. She set him up and he took the bait. 

The NHPD should also do some type of vetting of those who attend.

NHI article, July 8, 2016, posted at 9:31PM about a non-permitted rally on the green of 700 people, after many of them had taken to the streets and blocked traffic.  It was a rally against police brutality.  The following is taken from that article, without editing:

“I have seven sons” activist Barbara Fair said.  “We say we don’t know when the hour comes.  The hour comes for me when one of them pigs do something to my child.  I salute those mothers who can somehow carry on—you take my child, and I want you to hear it around the world.  You take mine and you will not sit around the station and tell your story.  Because I’m gonna go completely off.  You want to take my child’s life?  Your life is gone too.  You better believe me.  I mean it to the bottom of my heart, to my toes and my soul.  And when I say my sons I mean my grandsons too.  Don’t even try it.”

In response to this law suit, the NHPD would be wise to restructure CompStat into a 2 part meeting (public and non-public) and outline the new structure and rules of order for those meetings in an NHPD Document.

posted by: JaneAtPeopleAgainstInjustice on July 18, 2017  10:31pm

I was nervous this case was going to be dismissed on summary judgment (the thing the judge just decided) because Judge Underhill granted summary judgment to the City of Waterbury in a lawsuit brought by the child victims of former Mayor Giordano (who is now in prison and will be probably for the rest of his life). I couldn’t wrap my head around that one.

So to hear a jury will get to hear this case was very good news.

That said, I will descend into the mire of this comment section to scold all you teacher’s pets. really now, do you all really mean the things you are saying?

The NHI is supposed to the the more progressive and or sophisticated of the news outlets in town and because of that I am always perplexed by the schoolmarms that people its comment boards.

Not to call you out as in any way exceptional on this point Robn, but you read the article right? It said that they try to schedule others to say something as time permits. And it says that Barbara asked at the end of the meeting if she could say something and they said yes. She then made a statement and asked a question.

What part of that did you not read, or if you read it, feel this irresistible need to misrepresent that,  as if she hijacked a forum inappropriately?

I guess I really don’t understand how so many progressives are so squeamish about associating with those who support reform, and especially egregious is slandering them as criminals - I see stuff at times that seems actionable to me. It serves no purpose to tear people down who are trying to do good, genuinely trying to do good.

A lot of you know very little about policing, by the way, and that doesn’t help.

Question for those who have attended compstat meetings - have any of you heard names of people accused but not convicted floated at those meetings, in public? Please let us all know that. It would be important. It would be illegal, in fact.

posted by: Bill Saunders on July 18, 2017  10:55pm

Ex-NHPD

This is not an isolated instance.

I have second hand knowledge of a reporter that ‘lingered’ into the second half of the COMSTAT meeting, only to be verbally abused by the Former Chief…...

These guys just can’t get it together…..

posted by: GroveStreet on July 19, 2017  7:32am

This city has far too many grievance queens who waste the time of others with their pointless words. They are always rude and other less than nothing.

posted by: Dwightstreeter on July 19, 2017  8:43am

It’s not easy for members of the public to find out where to go for action on an issue.
        The law requires that city boards and commissions and public meeting, like the Board of Alders, post their meeting notices a minimum of 24 hours in advance, although calendars for the entire year are sometimes filed.
        The Clerk’s office has the notices and sometimes the meetings are posted individually online, but the city should have a master calendar online for all meetings. Right now it takes an inordinate amount of time to find out when a meeting is scheduled. Oh, and some people don’t post in violation of the law.
        The Board of Police Commissioners has been suggested as a vehicle for a Civilian Review Board by the Mayor, its advantage being it has subpoena power. How the issue of retaliation against an appointed board would be handled has not yet reached my ears. Nor is it clear how the public will select some of the members.
Not that this is a done deal.
        The next meeting of the Board of Police Commissioners will be August 8 at 6 PM at City Hall, but it is always important to confirm in case of changes.
        More people should sit in on the meetings of our boards and commissions and ask questions. It is the public’s right to be present and to ask questions at the appropriate time.
        If all you know about an issue is what you read in the paper or hear from a pal, you’re clueless; but that still doesn’t stop many of you from commenting negatively about people who are better informed AND trying to improve the situation.

posted by: HhE on July 19, 2017  8:54am

Exactly how does “Ixnay on the personal attacks.” square with the very insulting, ” Your behavior is a little over the edge and makes your statements incredulous.  I’m inclined to suggest a good therapist. Try 211 infoline. Hope you get better.”?

posted by: JaneAtPeopleAgainstInjustice on July 19, 2017  10:12am

Oops, correction to my previous comment:

“Question for those who have attended compstat meetings - have any of you heard names of people accused but not convicted floated at those meetings, in public?”

Accused but not charged, or also the names of people floated as somehow criminal whose cases were dismissed (and sealed by law)? That might be illegal.

posted by: robn on July 19, 2017  10:36am

Barbara Fair gave exhaustive quotes about her family history and how its shaped her outlook of the NHPD in Maya Schenwar’s book, “Locked Down, Locked Out”. This is voluntarily offerred, published, public information.

https://books.google.com/books?id=NaGHAwAAQBAJ&pg=PA49&lpg=PA49&dq=new+haven+prison+author+barbara+fair&source=bl&ots=2w-2YKbSuB&sig=N3bsNuTPxAnJ-JAGynbDAD_q_cI&hl=en&sa=X&ved=0ahUKEwiO07qG1JXVAhUBXD4KHbgaCMsQ6AEIUzAG#v=onepage&q=new haven prison author barbara fair&f=false

posted by: JohnDVelleca on July 19, 2017  10:37am

Compstat should not be open to the public.  It’s designed to be an exchange of law enforcement sensitive ideas and information, period.  This is just another example of Esserman’s “dog and pony show” that blew up in his face.  It’s likely that he opened up the meetings to the public merely to increase the size of the audience to view his “look at me, I’m the police chief” show every week.  Maybe a separate meeting, similar to Compstat, designed specifically for the community is in order on a bi-weekly basis.  Be smart Anthony, close the meetings.  The community will understand because they support us and they actually want to help us.  There are other ways to reach them…

posted by: Dwightstreeter on July 19, 2017  1:53pm

@ ex-NHPD: If you thought the quote from Barbara Fair about her defense of her children’s lives was worth posting for some reason, then it might also help for you to know that she lost a 3 year old daughter in a house fire years ago and still is mourning that loss on an almost daily basis.
    That explains why the police violence to her daughter Holly was traumatic for not just Holly, but Barbara, who watched the video showing her smart, lovely daughter being man-handled because the guy had a badge and a gun and could act like a bully.
    Any parent who doesn’t entertain violent thoughts about what they’d do to protect or avenge a child is lying.
    But thoughts are not actions.
    Did you know that the Mayor appointed her to the Mayor’s Community and Police Relations Task Force?

posted by: WilliamGary on July 19, 2017  2:08pm

Under no circumstances should the public be allowed to attend a CompStat meeting.  If the police department allows the public to attend or participate it is not CompStat, it is something else but not Compstat.

Compstat is a strategic meeting putting together statistical, analytical, confidential and investigative materials.  Public attendance would compromise strategies being addressed to solve or minimize current criminal activity/issues.  Compstat meetings in the true sense identify suspects, persons of interest, addresses where criminal activity is occurring and information that is in some cases cannot be disseminated.

Give the New Haven Program a name, but don’t call it CompStat.

posted by: challenge on July 19, 2017  2:13pm

@ExNHPD. Your post relative to Barbara Fair’s statement about how she might react if an officer murdered her son does not make her a remarkable woman. I’m sure I can find millions of mothers who might feel the same way . They might not voice it yet for certain they would feel it. And if the quote was not to show that she is a remarkable woman then I’m missing your point.

posted by: Harvey Fair on July 19, 2017  4:49pm

You can’t win if you refuse to get in the ring and defend yourself.

posted by: Dwightstreeter on July 19, 2017  8:59pm

@robn: I read your posting and it confirms all that we know about the prison-industrial complex that has targeted the Black Community since Nixon instituted the bogus “war on drugs” aimed at reducing voting by hippies and Blacks by incarcerating them for drugs that were previously not an issue.
    White America targeted the Black community as a continuation of the Jim Crow laws that were a continuation of the enslavement of Africans.
    Mandatory sentencing was another tool to create an increased prison population that makes the US #1 in imprisoning people! We’re #1!
    There is no reforming this miserably cruel and exploitative system. It has to go.
    Most western societies do a superior job to the US in decriminalizing drug use and keep incarceration to a limit.
    Barbara Fair is New Haven’s Sojourner Truth.
    History is on her side.