NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      _____________

                           No. 16-4318
                          _____________

                    LIUDMILA MURAVEVA;
                       CLAYTON SMITH

                                 v.

                 SHAWN A. TOFFOLI;
                   JAMES STEVENS;
       CITY OF WILDWOOD POLICE DEPARTMENT;
  CITY OF WILDWOOD POLICE OFFICERS UNKNOWN 1-10;
                 CITY OF WILDWOOD

                           Liudmila Muraveva,
                                  Appellant
                          _____________

          On Appeal from the United States District Court
                   for the District of New Jersey
                 District Court No. 1-13-cv-04665
            Trial Judge: The Honorable Joel Schneider

         Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                       September 25, 2017

Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges

                    (Filed: September 26, 2017)
                                _____________________

                                      OPINION ∗
                               _______________________

SMITH, Chief Judge.

       On the evening of August 5, 2011, during an encounter with police in the street

outside her home, Liudmila Muraveva was arrested for disorderly conduct in violation of

N.J. Stat. Ann. § 2C:33-2a(1). 1 She later sued the arresting officer, Shawn Toffoli, for

false arrest pursuant to 42 U.S.C. § 1983. 2 The central issue at trial was whether Toffoli

had probable cause for the arrest.

       The circumstances of the arrest were highly contested. Toffoli testified that

Muraveva pursued him into the street while intensely screaming, cursing, yelling, and

flailing her arms, and would not respond to the officers’ attempts to de-escalate the

situation, while people nearby watched. J.A. 227–30. The second officer at the scene,

James Stevens, similarly testified that Muraveva followed the officers to their car while

yelling, screaming, cursing, and telling them to get off the block, while people in a

nearby building watched from the balcony. J.A. 200, 204. Stevens also testified that


*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
1
 N.J. Stat. Ann. § 2C:33-2a(1) provides: “A person is guilty of a petty disorderly persons
offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof he [e]ngages in fighting or threatening, or in violent or tumultuous
behavior.”
2
  Muraveva’s complaint named additional defendants and included additional claims, but
they are not relevant to this appeal.

                                             2
Muraveva’s behavior interfered with the investigation that the officers were attempting to

conduct. J.A. 207. Muraveva, in contrast, testified that she approached Toffoli simply to

speak with him, without shouting or cursing, and was immediately arrested. J.A. 104–05.

       After the three-day trial was complete, the jury returned a verdict in favor of

Toffoli. The District Court entered judgment, and Muraveva filed this timely appeal. 3

                                             I.

       Muraveva contends that the District Court did not properly instruct the jury as to

whether Toffoli had probable cause to arrest her. We exercise plenary review over the

jury instructions to determine whether they correctly stated the applicable law; absent a

misstatement of the law, we review them for abuse of discretion. Greenleaf v. Garlock,

Inc., 

, 361 (3d Cir. 1999).

       Muraveva’s arguments are not entirely clear, but we perceive two: (1) that the

District Court should have instructed the jury that conduct, as well as speech, is protected

by the First Amendment; and (2) that the jury instructions improperly permitted the jury

to consider testimony concerning Muraveva’s alleged interference with police duties. We

consider each argument in turn.

                                             A.

       Muraveva contends that the District Court’s instruction about probable cause

“allowed the jury to distinguish between her conduct and her speech in an impermissible



3
  The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
                                             3
way” and the jury therefore was permitted “to consider conduct and behavior which the

State is not allowed to proscribe under the First Amendment.” Appellant Br. at 24.

Because Muraveva does not dispute that the District Court properly advised the jury

about the contours of protected speech, we understand her to claim that the District Court

should have included additional instructions to advise the jury that conduct also may be

protected under the First Amendment and, if protected, may not give rise to probable

cause for an arrest. 4

         Conduct is protected by the First Amendment “when ‘the nature of [the] activity,

combined with the factual context and environment in which it was undertaken,’ shows


4
    The District Court instructed the jury that

         [S]pecial rules apply to determining whether probable cause exists when
         spoken words are involved. . . .

         The only category of spoken words that can support a probable cause
         finding of disorderly conduct in this case is the category known as “fighting
         words.” These are words which by their very utterance inflict injury or
         tend to incite an immediate breach of the peace, in other words, language
         that is directed to inciting or producing imminent, lawless action and is
         likely to incite or produce such action. Even profane words,
         unaccompanied by violent arousal, are not “fighting words” and are,
         therefore, protected speech.

         Thus, in examining whether probable cause existed for plaintiff’s arrest, it
         is important that you distinguish between plaintiff’s conduct or behavior
         and the language plaintiff used. Plaintiff’s language may only be used to
         support a probable cause finding if it fits into the narrow category I just
         described. Otherwise, plaintiff’s speech is protected and may not be relied
         upon to support a probable cause finding.

J.A. 307–08. This is a correct statement of the applicable law. See, e.g., Gilles v. Davis,

, 204 (3d Cir. 2005) (a statute prohibiting disorderly conduct may not punish
protected speech, but may prohibit fighting words).
                                                  4
that the ‘activity was sufficiently imbued with elements of communication to fall within

the [First Amendment’s] scope.’” Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 

, 158 (3d Cir. 2002) (alteration in original) (quoting Spence v. Washington, 

, 409–10 (1974)). It is the obligation of the person wishing to engage in

expressive conduct to show that the First Amendment applies. 

(quoting Clark

v. Cmty. for Creative Non-Violence, 

, 293 n.5 (1984)).

       Muraveva does not point us to any evidence demonstrating that she engaged in

expressive conduct, and we are aware of none. Based upon our review, it appears that the

only evidence of Muraveva’s conduct presented to the jury—apart from testimony

concerning Muraveva’s words and tone of voice—was Toffoli’s testimony that Muraveva

followed the police officers into the street while “flailing her arms.” J.A. 229.

       The record provides, and Muraveva offers, no basis for concluding that following

the officers and flailing her arms, without more, constitutes expressive conduct

warranting constitutional protection. Because no evidence of expressive conduct was put

forth, we conclude that the District Court did not abuse its discretion in declining to

instruct the jury in that regard. 5 See United States v. Hoffecker, 

, 156 (3d


5
  To the extent Muraveva implies that all conduct is protected by the First Amendment
unless it is directed to inciting or producing imminent lawless action, she is incorrect. As
the Supreme Court has stated, “[w]e cannot accept the view that an apparently limitless
variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct
intends thereby to express an idea.” United States v. O’Brien, 

, 376 (1968).
Accordingly, conduct may only constitute speech protected by the First Amendment if
“[a]n attempt to convey a particularized message was present, and . . . the likelihood was
great that the message would be understood by those who viewed it.” Texas v. Johnson,

, 404 (1989) (alteration in original) (citation and internal quotation marks
                                              5
Cir. 2008) (no abuse of discretion where there is no evidentiary support for instruction).

                                              B.

       Muraveva next argues that the District Court improperly advised the jury that it

could consider Toffoli’s testimony that she prevented him from performing police

duties. 6 As she correctly observes, preventing a police officer from performing his duties

is not an element of the disorderly conduct statute under New Jersey law. See State v.

Stampone, 

, 197 (N.J. Super. Ct. App. Div. 2001).

       We conclude that the District Court properly advised the jury of the applicable

law. The District Court did not advise the jury that interference with a police officer’s

duties is an element of the offense, but rather, correctly instructed the jury that one

element of the offense is “tumultuous behavior.” 

to successfully convict

an accused of disorderly conduct the State must prove beyond a reasonable doubt that the

defendant caused public inconvenience, public annoyance or public alarm, or a reckless

risk thereof, by fighting, threatening, violent or tumultuous conduct. . . .”). New Jersey

courts have not defined that phrase. 

Court advised the jury that, in


omitted). For that reason, we reject Muraveva’s claim that N.J. Stat. Ann. § 2C:33-2a(1)
is unconstitutional as applied to her on grounds that the “totality of Muraveva’s speech
and behavior,” Appellant Br. at 14, is protected under the First Amendment.
6
  Although Muraveva objected to various aspects of the jury instructions, she did not
raise this particular objection with the District Court. Ordinarily, therefore, we would
review the instruction for plain error. See Fed. R. Civ. P. 51(d)(2); Franklin
Prescriptions, Inc. v. N.Y. Times Co., 

, 340 (3d Cir. 2005). Here, however,
Toffoli notified the District Court of this issue, and the District Court considered it. See
J.A. 300–01. Given this unusual circumstance, we will treat the objection as if it was
properly preserved and review it for abuse of discretion.
                                              6
determining whether Toffoli had probable cause to arrest Muraveva for behavior that was

“tumultuous,” it was to “consider the totality of the circumstances Officer Toffoli faced.”

J.A. 305. The District Court then referred to various aspects of Muraveva’s behavior to

which Toffoli had testified, including her interference with police work. J.A. 306.

       Particularly given the absence of guidance from the New Jersey courts, we see no

abuse of discretion in the District Court’s guidance to the jury to consider the totality of

the circumstances in assessing whether Muraveva’s behavior was “tumultuous.” See Paff

v. Kaltenbach, 

, 436 (3d Cir. 2000) (probable cause must be approached

with common sense, based on the totality of the circumstances).

                                              II.

       Next, Muraveva claims that the evidence does not support the existence of

probable cause and that the District Court therefore erred in denying her motion for

judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure.

A motion for judgment as a matter of law “should be granted only if, viewing the

evidence in the light most favorable to the nonmovant and giving it the advantage of

every fair and reasonable inference, there is insufficient evidence from which a jury

reasonably could find liability.” Avaya Inc., R.P. v. Telecom Labs, Inc., 

,

373 (3d Cir. 2016) (internal quotation marks omitted) (quoting Lightning Lube, Inc. v.

Witco Corp., 

, 1166 (3d Cir. 1993)). Such a motion should be granted only

sparingly. Goodman v. Pa. Turnpike Comm’n, 

, 665 (3d Cir. 2002).

       Viewing the evidence in the light most favorable to Toffoli, there was evidence

                                              7
that Muraveva was screaming, flailing her arms, following the police officers into the

street, engaging with them rather than responding to their efforts to de-escalate the

situation, interfering with their investigation, and attracting the attention of bystanders in

a public area. Giving that evidence the advantage of all fair and reasonable inferences,

we conclude that it was sufficient for a jury to reasonably conclude that Toffoli had

probable cause to arrest Muraveva for disorderly conduct.

                                             III.

       Finally, Muraveva contests the District Court’s decision to award summary

judgment to Toffoli on Muraveva’s demand for punitive damages. We review this issue

de novo. See Delli Santi v. CNA Ins. Cos., 

, 207 (3d Cir. 1996).

       According to the District Court’s oral ruling on summary judgment, there was no

evidence of “willfulness, bad faith, egregious conduct, et cetera” that would warrant the

imposition of punitive damages, so the issue was not appropriate for submission to the

jury. J.A. 4. Muraveva contends, without citing to evidence to support her position, that

the District Court erred because “Toffoli’s conduct met the minimum ‘callous’ standard

at least” on the basis that “his arrest of Muraveva showed a lack of respect for her rights

as an individual under the protection of the First Amendment.” Appellant Br. at 27.

       To be awarded punitive damages under New Jersey law, a plaintiff must

demonstrate that the defendant’s conduct was “wantonly reckless or malicious.”

Lightning Lube, Inc. v. Witco Corp., 

, 1192 (3d Cir. 1993). Muraveva’s bare

contention that there was evidence of a “lack of respect for her rights” does not satisfy

                                              8
this standard. We agree with the District Court’s assessment that the record was devoid

of evidence that could warrant the imposition of punitive damages and that the issue

therefore was not appropriate for the jury.

                                              IV.

       For all of the foregoing reasons, we will affirm the judgment of the District Court.




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