David Montenegro v. Anthony F. Colarusso

First Amendment Does Not Immunize Protestor From Arrest For Disorderly Conduct
U.S. District Court for New Hampshire, Opinion No. 2015 DNH 012
Thursday, January 15, 2015

The U.S. District Court in New Hampshire dismissed the plaintiff’s claims for retaliatory and malicious prosecution arising out of his arrest for disturbing the peace while setting up a protest demonstration on a sidewalk.

David Montenegro was arrested on a street corner in Dover, where he was setting up a demonstration to protest police corruption. He had a permit for his demonstration, but two police officers determined that his demonstration was blocking pedestrian traffic and therefore creating a public safety hazard. The officers asked him to move his demonstration to a different, safer location, but Montenegro refused and was subsequently arrested for disorderly conduct.

Montenegro was prosecuted and convicted, although his conviction was overturned on appeal. He then brought claims for retaliatory and malicious prosecution against Anthony Calarusso, the Dover Police Chief, in his official capacity. The Court first noted that this was actually a claim against the City of Dover because an “official capacity” claim is, in effect, an action against the entity for which the officer is an agent. The Court then held that Montenegro’s claims must fail because he could not establish that his arrest for disturbing the peace was unsupported by probable cause, which is an essential element of both claims. The undisputed evidence, including photographs of the scene, established that Dover Police had probable cause to arrest Montenegro: his display obstructed pedestrian traffic; he refused to comply with the officer’s repeated, lawful requests to relocate his display; and the trial judge’s conclusion that there was sufficient evidence to convict plaintiff of disorderly conduct was persuasive and consistent with the conclusion that there was probable cause for the arrest.  The fact that Montenegro was exercising his First Amendment rights did not immunize him from compliance with the law against disorderly conduct.