16-258-cv
Barboza v. D’Agata


                          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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 18th day of January, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
----------------------------------------------------------------------
WILLIAN BARBOZA,
                                 Plaintiff-Appellant,

                        v.                                               No. 16-258-cv

DETECTIVE STEVEN D’AGATA, sued in his individual
capacity, POLICE OFFICER MELVIN GORR, sued in
his individual capacity,
                         Defendants-Appellees,

ROBERT ZANGLA, sued in his individual capacity,
VILLAGE OF LIBERTY,
                                 Defendants.
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          STEPHEN BERGSTEIN, Bergstein & Ullrich,
                                                  LLP, Chester, New York.



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

                                                     1
APPEARING FOR APPELLEES:                 STEPHEN J. GABA (Adam L. Rodd, on the
                                         brief), Drake Loeb, PLLC, New Windsor,
                                         New York.

FOR AMICUS CURIAE:                       Matthew D. McGill, Gibson, Dunn & Crutcher
                                         LLP, Washington, D.C.; Goutam U. Jois, Darcy
                                         C. Harris, Gibson, Dunn & Crutcher LLP, New
                                         York, New York, for amicus curiae The Legal
                                         Aid Society.

      Appeal from a judgment of the United States District Court for the Southern

District of New York (Cathy Seibel, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered pursuant to Fed. R. Civ. P. 54(b) on January

22, 2016, is AFFIRMED.

      Plaintiff Willian Barboza appeals from an award of summary judgment, based on

qualified immunity, in favor of defendants Detective Steven D’Agata and Police Officer

Melvin Gorr. We review a summary judgment award de novo and will affirm only if

the record, viewed in the light most favorable to the non-movant, shows no genuine

dispute of material fact and the movant’s entitlement to judgment as a matter of law.

See Jackson v. Fed. Express, 766 F.3d 189, 193–94 (2d Cir. 2014). In conducting our

review, we assume the parties’ familiarity with the facts and record of prior proceedings.

Nevertheless, some background is necessary to explain our decision to affirm.

      Barboza sued D’Agata and Gorr pursuant to 42 U.S.C. § 1983, alleging false arrest

and violation of free speech insofar as he was taken into custody on October 18, 2012, for




                                              2
aggravated harassment in the second degree, see N.Y. Penal Law § 240.30(1),1 based on

his writing vulgar and obscene words on a traffic-citation payment form that he returned

to the Liberty Town Clerk’s Office in August 2012 when paying a fine for admitted

speeding. 2    Clerk’s Office employees, upset by Barboza’s returned payment form,

brought it to the attention of Town Judge Brian Rourke who, thinking the words written

thereon might be construed as a threat to the all-female staff, referred the matter to

Sullivan County Assistant District Attorney Robert Zangla.3 Judge Rourke then advised

Barboza in writing that his payment was not accepted and ordered him to appear in court

on October 18, 2012.       Zangla meanwhile reviewed Barboza’s communication with

District Attorney James Farrell, in the course of which they discussed the possibility of

Barboza having a First Amendment defense to an aggravated harassment charge. In the

end, Farrell instructed Zangla to file such a charge.        Zangla planned to do so at

1
    At the relevant time, Penal Law § 240.30 stated as follows:

        A person is guilty of aggravated harassment in the second degree when,
        with intent to harass, annoy, threaten or alarm another person, he or she:
        1. (a) communicates with a person, anonymously or otherwise, by
        telephone, by telegraph, or by mail, or by transmitting or delivering any
        other form of written communication, in a manner likely to cause
        annoyance or alarm.

See People v. Golb, 23 N.Y.3d 455, 466–67, 991 N.Y.S.2d 792, 800 (2014); People v.
Mangano, 100 N.Y.2d 569, 570, 764 N.Y.S.2d 379, 380 (2003).
2
  Specifically, Barboza crossed out “Liberty,” the name of the town, and substituted
“Tyranny,” and wrote in capital letters “FUCK YOUR SHITTY TOWN BITCHES.”
3
  Zangla was also a named defendant in this action. He, along with fellow defendant
Town of Liberty, settled this action. Thus, we have no reason to review the district
court’s denial of the parties’ cross-motions for summary judgment as to the Town and
award of summary judgment for Barboza as against Zangla.

                                              3
Barboza’s October 18 court appearance, at which time he intended for Barboza to be

arrested.   On October 18, Zangla showed Barboza’s payment form to defendant

D’Agata, who was then providing security at the Town Court. Zangla told D’Agata that

the court clerks felt threatened by the communication, and he instructed D’Agata to draft

an information charging Barboza with aggravated harassment. D’Agata did so, quoting

Barboza’s offensive comments in support of the charge, whereupon Zangla reviewed and

approved the information.     D’Agata then requested defendant Gorr’s assistance in

arresting Barboza, which the officers did after submitting the information to Judge

Rourke, who provided a copy to Barboza, reprimanded him for his comments on the

payment form, and advised that he would be arrested. Judge Rourke then recused

himself from the matter, whereupon Barboza was taken to the neighboring Town of

Fallsburg, where he was arraigned by a judge of that town, who assigned him counsel and

set $200 bail, which Barboza posted that day, resulting in his release.         Barboza

subsequently moved to dismiss the charge on First Amendment grounds, which motion

was granted by a Fallsburg judge on March 22, 2013.

       Barboza argues that defendants are not entitled to qualified immunity. Qualified

immunity shields law enforcement officers from § 1983 claims for money damages

provided that their conduct does not violate clearly established constitutional rights of

which a reasonable person would have been aware. See, e.g., Ashcroft v. al-Kidd, 563

U.S. 731, 735 (2011); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Zalaski v. City of

Hartford, 723 F.3d 382, 388 (2d Cir. 2013). Two questions inform qualified immunity

analysis.   First, do the facts show that the officer’s conduct violated plaintiff’s

                                           4
constitutional rights?    Second, if there was a constitutional violation, was the right

clearly established at the time of the officer’s actions? See Ashcroft v. al-Kidd, 563 U.S.

at 735; Zalaski v. City of Hartford, 723 F.3d at 388. For law to be clearly established, it

is not necessary to identify a case directly on point. But precedent must have spoken

with sufficient clarity to have placed the constitutional question “beyond debate.”

Ashcroft v. al-Kidd, 563 U.S. at 741; accord Mullenix v. Luna, 136 S. Ct. 305, 308

(2015).

       In determining whether a right was so clearly established, the Supreme Court has

emphasized that the “dispositive inquiry . . . is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz,

533 U.S. 194, 202 (2001) (emphases added); Mullenix v. Luna, 136 S. Ct. at 308; Zalaski

v. City of Hartford, 723 F.3d at 389; Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007).

In short, a clearly established right is not identified by reference to how courts or lawyers

might have understood the state of the law. Nor is it sufficient for a right to have been

established generally or in a context distinct from that at issue. Rather, at the second

step inquiry, “[e]ven if the right at issue was clearly established in certain respects, . . . an

officer is still entitled to qualified immunity if ‘officers of reasonable competence could

disagree’ on the legality of the action at issue in its particular factual context.” Walczyk

v. Rio, 496 F.3d at 154 (emphases added) (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)); accord Zalaski v. City of Hartford, 723 F.3d at 389.4


4
  To the extent the district court treated the identification of a clearly established right
and the objective reasonableness of defendants’ conduct as distinct inquiries and

                                               5
       As these precedents indicate, qualified immunity is a broad shield specifically

designed to give public officials “breathing room to make reasonable,” even if sometimes

“mistaken judgments” without fear of facing disabling liability.           Messerschmidt v.

Millender 132 S. Ct. 1235, 1244 (2012) (internal quotation marks omitted).       Toward that

end, the standard of review is deliberately “forgiving,” Zalaski v. City of Hartford, 723

F.3d at 389, providing “ample protection to all but the plainly incompetent or those who

knowingly violate the law,” Malley v. Briggs, 475 U.S. at 341; accord Ashcroft v.

al-Kidd, 563 U.S. at 743. Defendants fall into neither of these categories.

       In urging otherwise, Barboza contends that, at the time defendants arrested him, he

had a clearly established First Amendment right to engage in the vulgar and obscene

speech at issue despite N.Y. Penal Law § 240.30(1). In support, he points, as the district

court did, to People v. Mangano, 100 N.Y.2d 569, 764 N.Y.S.2d 379 (2003), in which the

New York Court of Appeals held that § 240.30(1) could not constitutionally be applied to

a defendant’s conduct in leaving recorded telephone messages with a municipal parking

concluded that identification of a clearly established right in the context at issue did not
necessarily preclude qualified immunity based on the third inquiry, it misread our
precedent. See Zalaski v. City of Hartford, 723 F.3d at 388–89 (identifying two-inquiry
analysis and observing that qualified immunity may not attach where right is clearly
established in particular context); Walczyk v. Rio, 496 F.3d at 154 & n.16 (identifying
two-inquiry analysis and explaining why concurring opinion’s objection to
characterization of second inquiry is unfounded). There is no need for us to clarify the
two-inquiry standard in a published opinion as amicus urges because we have already
done so. See Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 433 n.11
(2d Cir. 2009) (observing that, despite some cases that might appear to frame it in
disjunctive, “‘objectively reasonable’ inquiry is part of the ‘clearly established’ inquiry”).
We here need explain only why, on a correct application of the two-step inquiry,
defendants are nevertheless entitled to qualified immunity. See Figueroa v. Mazza, 825
F.3d 89, 99 (2d Cir. 2016) (reiterating authority to affirm on any ground supported by
record).

                                              6
bureau that “rained invective on two village employees, wished them and their families ill

health, and complained of their job performance, as well as tickets that she had received,”

id. at 570, 764 N.Y.S.2d at 380. The court held such speech protected by the First

Amendment because it was “made in the context of complaining about government

actions, on a telephone answering machine set up for the purpose . . . of receiving

complaints from the public.” Id. at 571, 764 N.Y.S.2d at 380.

      Assuming without deciding that state court decisions can clearly establish a

constitutional right, we note that Mangano did not hold § 240.30(1) violative of the First

Amendment in all respects. To the contrary, Mangano only distinguished—but did not

overrule—People v. Shack, 86 N.Y.2d 529, 634 N.Y.S.2d 660 (1995), in which the Court

of Appeals upheld a conviction for telephone harassment under § 240.30(2), concluding

that liability arose from defendant’s “harassing conduct, not from any expression entitled

to constitutional protection,” id. at 536, 634 N.Y.S.2d at 665. By contrast, Mangano

explained that the crude messages there at issue were “made in the context of

complaining about government actions, on a telephone answering machine set up for the

purpose (among others) of receiving complaints from the public,” which did not “fall

within any of the proscribable classes of speech or conduct.” 100 N.Y.2d at 571, 764

N.Y.S.2d at 380.

       This case is not “on all fours” with Mangano, as the district court concluded.

S.P.A. 13. Barboza did not transmit his offensive communication through a channel

“set up for the purpose . . . of receiving complaints from the public.” Rather, he wrote

his profane message on a government form the principal purpose of which was to

                                            7
transmit payment for a traffic offense to which he had already pleaded guilty. The

recipients of his invective were employees charged with the clerical processing of such

payments, not with receiving public complaints.       This is not to conclude that such

communications are not entitled to constitutional protection from § 240.30(1)

prosecution.   We observe only that neither Mangano nor any other case clearly

established such a First Amendment right at the time of the events at issue.           See

generally Vives v. City of New York, 405 F.3d 115, 117–18 (2d Cir. 2005) (observing that

§ 240.30(1) had not been held unconstitutional on its face and declining to reach question

where defendants were entitled to qualified immunity). It was only later, in 2014, that

the New York Court of Appeals would clarify that § 240.30(1) was unconstitutionally

vague on its face, violating the speech protections of both the state and federal

constitutions. See People v. Golb, 23 N.Y.3d 455, 467, 991 N.Y.S.2d 792, 800–01

(2014).5

      To be sure, the Supreme Court has long recognized that freedom of speech is

“protected against censorship or punishment, unless shown likely to produce a clear and

present danger of a serious substantive evil that rises far above public inconvenience,

annoyance, or unrest.” Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949); see City of

Houston v. Hill, 482 U.S. 451, 461 (1987). “True threats” are recognized as such a


5
  After Golb, § 240.30(1) was amended so that a person is guilty of second degree
aggravated harassment when, “[w]ith intent to harass another person, the actor . . .
communicates . . . a threat to cause physical harm to, or unlawful harm to the property of,
such person . . . and the actor knows or reasonably should know that such communication
will cause such person to reasonably fear harm to such person’s physical safety or
property.”

                                            8
danger, which thus can be banned without violating the First Amendment. Virginia v.

Black, 538 U.S. 343, 359 (2003). Such threats “encompass those statements where the

speaker means to communicate a serious expression of an intent to commit an act of

unlawful violence to a particular individual or group of individuals,” even if the speaker

does “not actually intend to carry out the threat.” Id. at 359–60. Consistent with these

principles, the New York Court of Appeals struck down a subsection of the first-degree

harassment statute, which had prohibited “abusive or obscene” language, stating that

“any proscription of pure speech must be sharply limited to words which, by their

utterance alone, inflict injury or tend naturally to evoke immediate violence.” People v.

Dietze, 75 N.Y.2d 47, 52, 550 N.Y.S.2d 595, 597 (1989).

      Defendants do not argue that a § 240.30(1) arrest could be premised on anything

less than probable cause to believe that a communication was intended to inflict such

injury or evoke such violence. Rather, they argue that a reasonable officer could have

believed there was probable cause to think Barboza intended to threaten injury through

his communication because (1) harm was implied by the obscenity used, a conclusion

reinforced by the vulgarity that could be read to describe the female employees who

received Barboza’s message; (2) the communication seemed irrational given that (a)

Barboza had already pleaded guilty to the charged speeding offense; (b) the speeding

ticket had been given to him by a state trooper and not any town employee; (c) the fine he

was required to pay was set by the state, not the town; and (d) the particular employees

who received Barboza’s form performed only clerical processing of his payment; (3) the

employees who received the communication were sufficiently upset to bring it to the

                                            9
attention of a town judge; (4) the town judge thought the communication could be

construed as a threat and, therefore, referred it to the district attorney; (5) the district

attorney, although recognizing a possible First Amendment defense, nevertheless,

concluded that the communication was sufficiently threatening to order the filing of an

aggravated harassment charge; (6) the assistant district attorney who shared the

communication with defendant D’Agata characterized it as a threat and directed the

officer’s preparation of an aggravated harassment information, which the assistant district

attorney reviewed and approved; (7) the information was also reviewed by the town

judge who first referred the matter, who advised Barboza that he was to be arrested based

on the information; and (8) the information was again reviewed by a neighboring town

judge who arraigned Barboza on the charge, ordering him detained pending the posting of

bail.

        On the totality of these circumstances, we cannot conclude that no reasonable

officer in the position of defendants D’Agata and Gorr could have believed that Barboza

could be arrested for aggravated harassment without violating the First Amendment. As

already explained, precedent did not clearly establish the unconstitutional facial

vagueness of § 240.30(1) until 2014. Rather, at the time at issue, New York’s Court of

Appeals had recognized both permissible and impermissible applications of the statute.

Thus, existing precedent did not yet place the question of § 240.30(1)’s constitutional

application to the circumstances of this case beyond debate. Further, an assistant district

attorney, after discussing the matter with the district attorney, advised the officers that

Barboza’s communication was threatening and warranted a § 240.30(1) charge (and,

                                            10
indeed, directed its filing). That conclusion was reinforced by the actions of two judges,

one of whom, after reviewing the charging information, advised Barboza that he was

about to be arrested, and the second of whom, upon similar review, arraigned and

detained Barboza on the charge. An officer is not automatically entitled to qualified

immunity simply because prosecutors or magistrates approve a challenged arrest; he can

still be subject to suit if “it is obvious that no reasonably competent officer would have

concluded” that a lawful arrest could be made. Malley v. Briggs, 475 U.S. at 341. But

the threshold for reaching that conclusion “is a high one” that is not easily satisfied where

a challenged charging instrument is approved by both a prosecutor and magistrates.

Messerschmidt v. Millender, 132 S. Ct. at 1245.             The error here—a matter of

constitutional law—was not one officers could be expected to identify at “a simple

glance.” See id. at 1250 (internal quotation marks omitted); see also Amore v. Novarro,

624 F.3d 533, 534–35 (2d Cir. 2010) (observing that police officers are not expected to

be lawyers or prosecutors and, in deciding what reasonable person in their position would

know about constitutionality of conduct, courts do not ask what lawyer would intuit from

researching case law). In these circumstances, “[t]he fact that none of the officials who

reviewed [a charging instrument] expressed concern about its validity demonstrates that

any error was not obvious.” Messerschmidt v. Millender, 132 S. Ct. at 1250.

       Accordingly, we conclude that the defendant police officers are entitled to

qualified immunity, not because—as the district court ruled—the First Amendment right

violated was clearly established but the officers’ conduct was nevertheless objectively

reasonable, but rather because a First Amendment right to engage in the charged conduct

                                             11
in the circumstances of this case was not yet clearly established so that no reasonable

officer could have thought (even if mistakenly) that Barboza could lawfully be arrested

for aggravated harassment in violation of N.Y. Penal Law § 240.30(1).

      We have considered Barboza’s remaining arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk of Court




                                          12
