| Downs v Town of Guilderland |
| 2010 NY Slip Op 01407 [70 AD3d 1228] |
| February 18, 2010 |
| Appellate Division, Third Department |
| Stephen Downs, Appellant, v Town of Guilderland et al.,Respondents. |
—[*1] Murphy, Burns, Barber & Murphy, L.L.P., Albany (Thomas K. Murphy of counsel), forTown of Guilderland and another, respondents. Whiteman, Osterman & Hanna, L.L.P., Albany (Christopher E. Buckey of counsel), forPyramid Management Group, Inc., and another, respondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Connolly, J.), entered April 6, 2009in Albany County, which, among other things, granted defendants' motions for summaryjudgment dismissing the complaint.
Plaintiff contends that his right to free speech under NY Constitution, article I, § 8 wasviolated and he was subjected to a false arrest while at Crossgates Mall in the Town ofGuilderland, Albany County. The mall is owned by defendant Pyramid Crossgates Company andoperated by defendant Pyramid Management Group, Inc. In early March 2003, when theinvasion of Iraq was looming, plaintiff and his adult son had customized T-shirts made at a storein the mall. Plaintiff's T-shirt stated "Peace on Earth" on the front and "Give Peace a Chance" onthe back, while his son's read "No War With Iraq" and "Let Inspections Work." The two men lefttheir jackets in the store where they had purchased the T-shirts, they put on the T-shirts overtheir clothing and proceeded to walk together throughout the mall.
Shortly thereafter, the mall security office received reports of disturbances betweencustomers and two men wearing "anti-war T-shirts." Two mall security guards responded to the[*2]report. One mall security guard, Robert Williams, testifiedthat he observed a commotion involving plaintiff (and his son) and other mall customers.According to Williams, he intervened and, in light of the disturbances, he asked plaintiff and hisson to either remove their T-shirts or leave the mall. They refused to do either. The two mallsecurity guards observed a Town of Guilderland police officer, defendant Adam Myers, who wasin the mall on an unrelated police matter, and they asked Myers for assistance. Myers testified athis deposition that while at the scene, he observed a potential disturbance involving a mallcustomer and plaintiff and his son. Although plaintiff's son removed his T-shirt, plaintiffcontinued to refuse to remove his T-shirt or leave the mall. Myers contacted his superior officer,who, after consultation with the Town Attorney, instructed Myers that if plaintiff continued torefuse the mall's directive and the mall wanted to press charges, plaintiff could be arrested fortrespass. Informed of such facts, plaintiff nevertheless continued his refusal to leave or removehis T-shirt. He was arrested for trespass. The charge was later dropped.
Plaintiff commenced this action against defendant Town of Guilderland and Myers(hereinafter collectively referred to as the Town defendants) and Pyramid Management Group,Inc. and Pyramid Crossgates Company (hereinafter collectively referred to as the Pyramiddefendants) alleging causes of action for false arrest, equal protection violation, free speechviolation, denial of right to travel, and civil banishment. Relief demanded included, among otherthings, monetary damages and judgment declaring the mall a public forum for purposes of freespeech. Following disclosure, the Pyramid defendants and the Town defendants each moved forsummary judgment dismissing the complaint. Plaintiff cross-moved for summary judgment onall his causes of action. Supreme Court granted defendants' motions. On appeal, plaintiff hasnarrowed his arguments to whether his right to free speech was violated and whether his arrestfor trespass was a false arrest.
We consider plaintiff's free speech argument first. The right to free speech is a "cherishedcivil libert[y]" (SHAD Alliance v Smith Haven Mall, 66 NY2d 496, 498 [1985]) anddiscussing governmental affairs is at the core of that right (see Matter of Parkhouse v Stringer, 12 NY3d 660, 666 [2009]).However, the constitutional guarantee of free speech protects against governmental infringementand, thus, restrictions regarding expression on private property, including malls, do not typicallyimplicate the constitutional right to free speech (see Lloyd Corp. v Tanner, 407 US 551,569-570 [1972]; SHAD Alliance v Smith Haven Mall, 66 NY2d at 502; Kings Mall, LLC v Wenk, 42 AD3d623, 624 [2007]). Stated another way, "while the drafters of the 1821 free speech clause maynot have envisioned shopping malls, there can be no question that they intended the StateConstitution to govern the rights of citizens with respect to their government and not the rights ofprivate individuals against private individuals" (SHAD Alliance v Smith Haven Mall, 66NY2d at 503). Thus, a person asserting a constitutional violation arising from a restriction onspeech that occurred on private property must show that the state was significantly involved and"[t]he factors to be considered in determining whether [state action] has been shown include: thesource of authority for the private action; whether the [s]tate is so entwined with the regulationof the private conduct as to constitute [s]tate activity; whether there is meaningful [s]tateparticipation in the activity; and whether there has been a delegation of what has traditionallybeen a [s]tate function to a private person" (id. at 505 [internal quotation marks andcitations omitted]).
Plaintiff points to several factors in this case that he contends reveal a joint enterprise of themall and the Town. We are unpersuaded that those factors constitute the requisite significantstate action. There is ample precedent establishing that the involvement of the Town police [*3]officer at the request of the mall to enforce the rights of the privateproperty owner under these circumstances did not constitute state action (see Moore vSuffolk County Police Dept., 151 Misc 2d 160, 162 [1991]; see also People v Raab,163 Misc 2d 382, 387-388 [1994]; Southwest Community Resources, Inc. v Simon Prop.Group, LP, 108 F Supp 2d 1239, 1250-1251 [D NM 2000]; see generally State vViglielmo, 105 Haw 197, 95 P3d 952 [2004]; State v Wicklund, 589 NW2d 793[Minn 1999]). Similarly, the weight of authority does not support the proposition that the mallwas transformed into a state actor by the presence on its premises of a police substation that didnot have Town personnel assigned to it and was used for bookings and paperwork on aninfrequent basis (see United Food & Commercial Workers Union, Local 919, AFL-CIO vCrystal Mall Assoc., L.P., 270 Conn 261, 289, 852 A2d 659, 675 [2004]; State vWicklund, 589 NW2d at 796, 802; cf. Kings Mall, LLC v Wenk, 42 AD3d at 625;Southwest Community Resources, Inc. v Simon Prop. Group, 108 F Supp 2d at1251-1252; but cf. Bock v Westminster Mall Co., 819 P2d 55 [Colo 1991]). Althoughthe mall's special use permit required an annual payment for a period of years to offset additionallaw enforcement expense, such a regulatory requirement by a municipality does not constitutesignificant state action so as to make the regulated private entity a state actor (see People vRaab, 163 Misc 2d at 387; cf. Jackson v Metropolitan Edison Co., 419 US 345, 351[1974]; Moghimzadeh v College of St. Rose, 236 AD2d 681, 682 [1997], appealdismissed 90 NY2d 844 [1997]). Plaintiff's assertion that the mall has created a public forumis not germane since "the characterization or the use of property is immaterial to the issue ofwhether [s]tate action has been shown" (SHAD Alliance v Smith Haven Mall, 66 NY2dat 506). While a small number of states have expanded traditional constitutionalanalysis—usually based on unique provisions of their constitutions—to includeprivately owned malls under circumstances analogous to this case (see e.g. New JerseyCoalition Against War in the Middle E. v J.M.B. Realty Corp., 138 NJ 326, 650 A2d 757[1994], cert denied sub nom. Short Hills Assoc. v New Jersey Coalition Against Warin the Middle E., 516 US 812 [1995]; Robins v Pruneyard Shopping Ctr., 23 Cal 3d899, 592 P2d 341 [1979], affd 447 US 74 [1980]), New York has interpreted itsconstitution regarding this issue in a manner essentially consistent with the federal courts and themajority of state courts (see SHAD Alliance v Smith Haven Mall, 66 NY2d at 500-505;see also State v Viglielmo, 105 Haw at 208-210, 95 P3d at 963-965 [discussing theanalysis used in various states]). We agree with Supreme Court that, under the analysis thatcontrols in this state, plaintiff failed to establish significant state action.
Plaintiff further asserts that his arrest for trespass was a false arrest. Since plaintiff's arrestwas warrantless, there was a presumption of unlawfulness making it incumbent upon defendantsto establish that Myers had probable cause to believe plaintiff had committed a trespass at thetime of his arrest (see Broughton v State of New York, 37 NY2d 451, 458 [1975], cert denied sub nom. Schanbarger v Kellog, 423 US 929 [1975];Stratton v City of Albany, 204 AD2d 924, 924-925 [1994]). Probable cause to justlyarrest does not require proof sufficient to warrant a conviction and can be supported by hearsay,if such hearsay is based upon the informant's knowledge and the information is reliable (seePeople v Johnson, 66 NY2d 398, 402-403 [1985]; People v Miner, 42 NY2d 937,938 [1977]; People v Horsman, 152 AD2d 859, 860-861 [1989]; People vMurphy, 97 AD2d 873, 874 [1983], lv denied 61 NY2d 764 [1984]).
Here, Myers was informed by mall security officers that there had been various disturbancesinvolving plaintiff, plaintiff's behavior was reportedly at least part of the cause of thedisturbances, and plaintiff had been repeatedly asked by authorized mall personnel to eitherremove his T-shirt or leave the premises and he refused. Myers also observed a potentialdisturbance involving plaintiff and learned directly from plaintiff that, despite being asked bymall personnel to leave, he absolutely refused to leave the premises. This proof provided [*4]probable cause for the trespass arrest. Plaintiff's contention that thedisturbances did not actually occur as described by the security officers does not require adifferent result. For purposes of probable cause, Myers could rely upon representations from thesecurity officers (both of whom gave sworn statements) since they claimed to have actualknowledge of the information they were reporting and there was no apparent reason to doubt thereliability of that information (see People v Johnson, 66 NY2d at 402-403).
We find unavailing plaintiff's argument that People v Leonard (62 NY2d 404 [1984])provides authority for his false arrest claim to proceed. In that case, which involved theexclusion of a person from state owned and operated property, the defendant's conviction wasreversed because the People failed to establish beyond a reasonable doubt at trial that theparticular exclusion order had a legitimate basis. However, "[p]robable cause does not requireproof sufficient to warrant a conviction beyond a reasonable doubt but merely informationsufficient to support a reasonable belief that an offense has been committed by the personarrested" (People v Shulman, 6NY3d 1, 25 [2005], cert denied 547 US 1043 [2006] [internal quotation marks andcitation omitted]). In light of all the facts and circumstances known to Myers at the time of thearrest, probable cause existed.
Mercure, J.P., Spain, Rose and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.