     13-1262-cv
     Auricchio v. Town of Dewitt, 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 A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 29th day of January, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DENNY CHIN,
 8                SUSAN L. CARNEY
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       NICHOLAS M. AURICCHIO,
13                Plaintiff-Appellant,
14
15                    -v.-                                               13-1262-cv
16
17       TOWN OF DEWITT; TOWN OF DEWITT POLICE
18       DEPARTMENT; EUGENE J. CONWAY,
19       Individually and in his official
20       capacity as Chief of Police for the
21       Town of Dewitt; BRENTON WHITE,
22       Individually and in his official
23       capacity as Police Officer for the
24       Town of Dewitt Police Department;
25       DAMON GAGNIER, Individually and in his
26       official capacity as Police Officer
27       for the Town of Dewitt Police
28       Department;
29                Defendants-Appellees;

                                                  1
 1
 2   JOHN DOE, Individually and in his
 3   capacity as a Police Officer for the
 4   Town of Dewitt Police Department;
 5            Defendant.
 6   - - - - - - - - - - - - - - - - - - - -X
 7
 8   FOR APPELLANT:             Michael J. Auricchio, Syracuse,
 9                              New York.
10
11   FOR APPELLEES:             Frank W. Miller, The Law Firm of
12                              Frank W. Miller, East Syracuse,
13                              New York.
14
15        Appeal from a judgment of the United States District
16   Court for the Northern District of New York (Suddaby, J.).
17
18        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
19   AND DECREED that the judgment of the district court be
20   AFFIRMED.
21
22        Nicholas Auricchio appeals from a judgment of the
23   United States District Court for the Northern District of
24   New York (Suddaby, J.), granting summary judgment in favor
25   of defendants-appellees. We assume the parties’ familiarity
26   with the underlying facts, the procedural history, and the
27   issues presented for review.
28
29        We review a grant of summary judgment de novo. See
30   Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.
31   2013). “Summary judgment is appropriate if there is no
32   genuine dispute as to any material fact and the moving party
33   is entitled to judgment as a matter of law.” Id.; accord
34   Fed. R. Civ. P. 56(a). In determining whether there are
35   genuine disputes of material fact, the court is “‘required
36   to resolve all ambiguities and draw all permissible factual
37   inferences in favor of the party against whom summary
38   judgment is sought.’” Terry v. Ashcroft, 336 F.3d 128, 137
39   (2d Cir. 2003) (quoting Stern v. Trs. of Columbia Univ. in
40   City of N.Y., 131 F.3d 305, 312 (2d Cir. 1997)). There is
41   no genuine dispute for trial “[w]here the record taken as a
42   whole could not lead a rational trier of fact to find for
43   the non-moving party.” Matsushita Elec. Indus. Co. v.
44   Zenith Radio Corp., 475 U.S. 574, 587 (1986).
45


                                  2
 1        This suit arises out of Auricchio’s arrest on East
 2   Genessee Street, in the Town of Dewitt, for violating the
 3   Town’s Noise Control Law by preaching. See Town of Dewitt
 4   Code, Ch. 126 (the “noise ordinance”). We affirm for
 5   substantially the same reasons set forth by the district
 6   court in its well-reasoned decision dated March 8, 2013.
 7   See Auricchio v. Town of DeWitt, 2013 U.S. Dist. LEXIS 31679
 8   (N.D.N.Y. Mar. 8, 2013).
 9
10        In particular, we have upheld the constitutionality of
11   similarly-worded statutes against facial challenges under
12   the First Amendment. See, e.g., Costello v. City of
13   Burlington, 329 F. App’x 330, 331 (2d Cir. 2009); Deegan v.
14   City of Ithaca, 444 F.3d 135, 140 (2d Cir. 2006).
15   Auricchio’s as-applied challenge is that the noise
16   ordinance’s exceptions render the ordinance impermissibly
17   content-based. We disagree. “[E]nforcement of the noise
18   control ordinance did not burden substantially more speech
19   than necessary to achieve [Dewitt’s] goal of curbing
20   excessive noise[,]” because the undisputed evidence
21   demonstrates that Auricchio’s “noise impinged on the use of
22   the neighborhood by others with equal claim[.]” Costello v.
23   City of Burlington, 632 F.3d 41, 46 (2d Cir. 2011).
24   Finally, we agree with the district court that the defendant
25   police officers had probable cause to arrest Auricchio; in
26   any event, they are entitled to qualified immunity on all of
27   Auricchio’s claims because, “[c]onsidered against the
28   backdrop of our prior holdings, it is clear [that] ‘officers
29   of reasonable competence could disagree on the legality of
30   [Auricchio’s] actions,’ especially in light of the multitude
31   of uses [East Genesee] Street must accommodate.” Id. at 52
32   (Pooler, J., concurring) (citation omitted).
33
34        For the foregoing reasons, and finding no merit in
35   Auricchio’s other arguments, we hereby AFFIRM the judgment
36   of the district court.
37
38                              FOR THE COURT:
39                              CATHERINE O’HAGAN WOLFE, CLERK
40




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