SANDRA DOLMAN, NICK MOTTERN, GAYLE DUNKELBERGER, VALERIE COURREGES, DAVID FINUCANE, KWAME MAHDI, MARGARET EBERLE, FRANK SMITH, Plaintiffs-Appellants, v. ANN HORNER, GARRISON COMMANDER SUED IN HER OFFICIAL AND PERSONAL CAPACITIES, JOHN SPISSO, BUILDING MANAGER, HOLLEDER CENTER, WEST POINT, Defendants-Appellees.[1]

No. 10-1615.United States Court of Appeals, Second Circuit.
October 18, 2011.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]
[1] The Clerk of the Court is directed to correct the caption as shown above.

Present: JOSEPH M. McLAUGHLIN, ROSEMARY S. POOLER, REENA RAGGI, Circuit Judges.

Appearing for Appellants: Michael H. Sussman, Sussman Watkins, Goshen, N.Y.

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Appearing for Appellees: Jeanette A. Vargas, Assistant United States Attorney for the Southern District of New York (Preet Bharara, United States Attorney for the Southern District of New York, Mara E. Trager, Ross E. Morrison, Assistant United States Attorneys for the Southern District of New York, on the brief), New York, N.Y.

Appeal from the United States District Court for the Southern District of New York (Robinson, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Sandra Dolman, Nick Mottern, Gayle Dunkelberger, Valerie Courreges, David Finucane, Kwame Mahdi, Margaret Eberle and Frank Smith (together, “Plaintiffs”) appeal from the jury verdict finding in favor of defendants, rendered July 22, 2009, the denial of their Rule 50(a) motion at the conclusion of trial and the March 31, 2010 opinion and order of the United States District Court for the Southern District of New York (Robinson, J.) denying their Rule 50(a), Rule 50(b) and Rule 59 motions. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

On February 28, 2004, the Plaintiffs attended a basketball game-open to the public-at West Point. When the national anthem played, they stood up, removing their jackets and revealing t-shirts spelling out “US OUT OF IRAQ.” Shortly after, John Spisso, the facilities manager, told Plaintiffs they could either remove their t-shirts or leave the arena. The Plaintiffs agreed to leave the arena. Garrison Commander Ann Horner sent each of the Plaintiffs a letter barring them from “all areas of West Point” for a period of five years, based on the incident.

Plaintiffs sued, alleging in relevant part that Spisso and Horner violated their First Amendment rights by suppressing constitutionally protected speech and by barring them from the base for exercising their constitutionally protected right to free speech.

We review the district court’s denial of Plaintiffs’ Rule 50 motion for judgment as a matter of law de novo. Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008). A grant of judgment as a matter of law following a jury verdict “may only be granted if there exists such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable and fair minded [persons] could not arrive at a verdict against [it].” Id. (internal citations and quotation marks omitted). “In reviewing such a motion, this Court must give deference to all credibility determinations and reasonable inferences of the jury, and may not weigh the credibility of witnesses or otherwise consider the weight of the evidence.” Id. (internal citations and quotation marks omitted).

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The district court properly determined that the Plaintiffs failed to satisfy the high standards required to overturn a jury verdict. While the record does contain evidence in support of the Plaintiffs’ case, the record also contains ample evidence from which a reasonable jury could find in favor of defendants. Specifically, a reasonable jury could find that regardless of whether a specific written policy existed prohibiting organized demonstrations at West Point, both Spisso and Horner believed demonstrations were not permitted at West Point, and that belief-not viewpoint discrimination-motivated the removal of Plaintiffs and the subsequent barment order. Moreover, a reasonable jury could conclude that defendants considered the t-shirts as the vehicle for the demonstration, and barred Plaintiffs based on their group effort in conveying the message, rather than for the message itself. See Cornelius v. NAACP Legal Defense Educ. Fund, Inc., 473 U.S. 788, 806 (1985).

Plaintiffs also argue the district court committed plain error when, in response to a question from the jury, it instructed the jury that “[t]he law does not require that Mr. Spisso has to have halted the plaintiffs’ protest because he personally disagreed with the viewpoint. The question is: Did he halt the message in order to stop the viewpoint from being broadcast.” Plaintiffs argue this instruction prevented the jury from finding that Spisso ordered the Plaintiffs removed because he personally disagreed with their message. We disagree. Plaintiffs did not object to the district court’s instruction, and therefore, we will reverse only if there was a fundamental error “so serious and flagrant that it goes to the very integrity of the trial.” SEC v. DiBella, 587 F.3d 553, 569 (2d Cir. 2009). No such fundamental error exists here. The district court correctly instructed the jury that in order to prevail, Plaintiffs did not have to prove that Spisso personally disagreed with the demonstration. Rather, Plaintiffs needed only to prove that he acted in order to suppress the Plaintiffs’ viewpoint. We find no error.

We have examined the remainder of Plaintiffs’ arguments and we find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

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