to prevent a possible physical confrontation and riot.
24. State Trooper Biagiotti felt that plaintiff's safety was in jeopardy and that a breach of peace was imminent. State Trooper McCauley independently came to the same conclusion.
25. State Trooper Biagiotti and Trooper McCauley immediately walked up to plaintiff.
26. State Trooper Biagiotti requested or suggested that plaintiff put his poster away because it was inciting the crowd.
27. State Trooper Biagiotti did not threaten to arrest plaintiff unless he failed to put the poster away.
28. State Trooper Biagiotti did not order plaintiff to put the poster away but expressed himself in the form of a request.
29. State Trooper Biagiotti asked plaintiff to put his poster away because it was inciting the crowd and he felt there was a possibility that the crowd would become violent having been taunted by plaintiff's poster.
30. State Trooper Biagiotti did not ask, tell, order or instruct plaintiff not to show the media the poster and did not ask, tell, order or instruct plaintiff that he could not display it during plaintiff's live interviews with the media.
31. Plaintiff promptly complied with State Trooper Biagiotti's request and put the poster away.
After this was done, the crowd calmed down, ceased yelling and taunting plaintiff, and resumed its prior calm and peaceful activities.
32. A few minutes later, plaintiff conducted two live interviews with Channel 10 and Channel 6 news.
33. Plaintiff chose not to display his poster during the television interviews.
34. State Trooper Biagiotti did not have time to call other police officers in the vicinity to help before he acted because he felt he had to act immediately to prevent the imminent threat of violence and riot.
35. State Trooper Biagiotti acted to prevent the imminent threat of physical harm and to maintain peace and order.
Trooper Biagiotti's conduct in requesting or suggesting that plaintiff put away the poster was a reasonable course of action.
36. The court finds that Trooper Biagiotti's testimony was fully credible. His credibility is bolstered by the testimony regarding his actions on that day prior to this incident (e.g., he did not prevent the display of equally graphic posters displayed by the anti-abortion protesters) and his prior experiences as a community relations officer.
37. Andrea Weitman testified on behalf of plaintiff. As a result of cross-examination of Ms. Weitman, the Court finds that her testimony and account of the incident was less than fully credible, and the court has discounted her testimony accordingly.
Conclusions of Law
1. Plaintiff did not prove, by a preponderance of the evidence, that Trooper Biagiotti ordered him to put away the poster in question.
2. Plaintiff failed to prove, by a preponderance of the evidence, that he had not simply acquiesced in a request or suggestion of Trooper Biagiotti to put the poster away.
3. Section 1983 provides that any citizen may recover money damages against any person who under the color of state law knowingly subjects that citizen to the deprivation of any rights protected by the United States Constitution.
To recover under section 1983, the plaintiff must prove by a preponderance of the evidence that:
(1) the defendant acted under the color of state law.
(2) the defendant acted intentionally or recklessly.
(3) the acts and conduct of the defendant were the proximate cause of the injuries, if any, suffered by the plaintiff and,
(4) the defendants' actions deprived the plaintiff of the plaintiff's rights secured to him by the constitution of the United States.
4. Plaintiff's first amendment rights were not violated by the actions of Trooper Biagiotti.
AND NOW, this 9th day of January, 1989, judgment is entered in favor of defendant State Police Officer Biagiotti, and against plaintiff Bill Baird.
AND IT IS SO ORDERED.
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