     14-4666-cv
     Pacherille v. Muehl et al.

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT
                                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007
     IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
     A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
     PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
     A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
     ANY PARTY NOT REPRESENTED BY COUNSEL.
 1
 2         At a stated term of the United States Court of Appeals for the Second Circuit, held at
 3   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 4   York, on the 13th day of October, two thousand fifteen.
 5
 6            PRESENT: BARRINGTON D. PARKER,
 7                             RAYMOND J. LOHIER, JR.,
 8                             SUSAN L. CARNEY,
 9                                     Circuit Judges.
10            ------------------------------------------------------------------
11
12            TONY PACHERILLE,
13
14                                                Plaintiff-Appellant,
15
16                                       v.                                           No. 14-4666-cv
17
18            JOHN MUEHL, individually and as District Attorney
19            of Otsego County, and SR. INV. MICHAEL TEN
20            EYCK, individually and as a member of the Otsego
21            County Sheriff’s Department,
22
23                                                Defendants-Appellees.*
24
25            ------------------------------------------------------------------
26



     * The Clerk of Court is directed to amend the case caption as set forth above.

                                                               1
 1            FOR PLAINTIFF-APPELLANT:                  Frank Policelli, Law Office of Frank
 2                                                      Policelli, Utica, NY
 3
 4            FOR DEFENDANTS-APPELLEES:                 Gregg T. Johnson, Lemire, Johnson &
 5                                                      Higgins, LLC, Malta, NY
 6
 7            Appeal from a judgment of the United States District Court for the Northern District
 8   of New York (Thomas J. McAvoy, Judge).
 9            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
10   AND DECREED that the judgment of the District Court is AFFIRMED.
11            Tony Pacherille appeals from an order of the United States District Court for the
12   Northern District of New York (McAvoy, J.) granting the defendants’ motions to dismiss.
13   We assume the parties’ familiarity with the facts and record of the prior proceedings, to
14   which we refer only as necessary to explain our decision to affirm.
15            In 2012 Pacherille was arrested and charged with aggravated harassment in the
16   second degree in violation of New York Penal Law § 240.30(1)(a). After the charge
17   against him was dismissed, Pacherille filed suit asserting § 1983 claims against Otsego
18   County District Attorney John Muehl, Senior Investigator Michael Ten Eyck of the Otsego
19   County Sheriff’s Department, and other defendants no longer part of this appeal. The
20   defendants filed motions to dismiss under Federal Rules of Civil Procedure 12(b)(6) and
21   12(c).
22            Based on our de novo review of the allegations in the complaint, we agree with the
23   District Court that Muehl and Ten Eyck are entitled to qualified immunity for their actions.
24   Law enforcement officers are protected by qualified immunity if (1) their “conduct [did]
25   not violate clearly established statutory or constitutional rights of which a reasonable
26   person would have known,” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), or (2) it was
27   “objectively reasonable for [them] to believe that [their] actions were lawful at the time of
28   the challenged act,” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (quotation marks

                                                   2
 1   omitted). Muehl is further “entitled to absolute immunity for all acts intimately associated
 2   with the judicial phase of the criminal process,” Simon v. City of New York, 727 F.3d 167,
 3   171 (2d Cir. 2013) (quotation marks omitted), including the filing of a criminal
 4   information, see Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011).
 5          In this case, Muehl and Ten Eyck are entitled to qualified immunity for Pacherille’s
 6   claims arising from the search and arrest warrants. The warrants were issued by a neutral
 7   magistrate and supported by probable cause to believe Pacherille violated New York Penal
 8   Law § 240.30(1)(a) as it existed in 2011 and 2012. See Messerschmidt v. Millender, 132
 9   S. Ct. 1235, 1245 (2012). It is true that the statute was subsequently struck down as
10   unconstitutional under the First Amendment. See People v. Golb, 23 N.Y.3d 455, 468
11   (N.Y. 2014). But at the time Muehl and Ten Eyck obtained the search and arrest warrants
12   in this case, it was objectively reasonable for them to conclude that they could rely on
13   written communications—in this case, the posting of a website—to establish probable
14   cause for the warrants.
15          We have considered all of Pacherille’s remaining arguments and conclude that they
16   are without merit. For the foregoing reasons, the judgment of the District Court is
17   AFFIRMED.
18

19
20                                                    FOR THE COURT:
21                                                    Catherine O=Hagan Wolfe, Clerk of Court




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