Boyler - Cert Petition

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No.

_________
_______________________________________________________
In The
Supreme Court of the United States
_______________________________________________________

Scott A. Boyler,

Plaintiff - Appellant,

v.

City of Lackawanna, Joseph Leo, individually and in his


official capacity as Captain of the City of Lackawanna
Police, Brian Lakso, individually and in his official capacity
as a City of Lackawanna Police Detective,

Defendants - Appellees.

On Petition For Writ Of Certiorari


To The United States Court of Appeals
for the Second Circuit
_______________________________________________________

PETITION FOR WRIT OF CERTIORARI


_______________________________________________________

JAMES OSTROWSKI MICHAEL KUZMA


63 Newport Ave. Counsel of Record
Buffalo, New York 14216 1893 Clinton St.
(716) 435-8918 Buffalo, New York 14206
jameso@apollo3.com (716) 822-7645
michaelkuzmaesq@gmail.com

Counsel for Plaintiff-Appellant


i

I. QUESTIONS PRESENTED FOR REVIEW

1. Did the Second Circuit err in adopting a


subjective test for whether retaliation chilled
free speech, contrary to at least six other
Circuits that use an objective test.

2. Did the Second Circuit err in holding that the


plaintiff could be arrested for posting pure
political speech on social media?

3. Did the trial court err in holding that the


individual defendants were entitled to
qualified immunity as it was not clearly
established that a citizen could not be arrested
for posting pure political speech on Facebook?

4. Did the trial court err in holding that a


website post can constitute aggravated
harassment under New York law?

5. Did the trial court err in granting summary


judgment to the defendants?

6. Did the trial court err in holding that the


defendants were entitled to summary
judgment with respect to the malicious
prosecution causes of action?
ii

II. LIST OF PARTIES

The plaintiff-appellant, Scott A. Boyler, was the appellant


in the Court of Appeals.

The defendants-appellees, City of Lackawanna, Joseph Leo,


and Brian Lakso, were appellees in the Court of Appeals.

None of the parties is a corporation.


iii

III. TABLE OF CONTENTS

QUESTIONS PRESENTED i

PARTIES TO THE PROCEEDINGS ii

TABLE OF CONTENTS iii

CITATIONS iv

JURISDICTION 1

CONSTITUTIONAL AND STATUTORY 1

PROVISIONS

STATEMENT OF THE CASE 2

ARGUMENT 4

CONCLUSION 7

APPENDIX 8

DECISION AND ORDER OF JUDGE


ELIZABETH WOLDFORD 8

JUDGMENT OF THE DISTRICT COURT 35

SUMMARY ORDER OF THE 36


SECOND CIRCUIT
iv

IV. CITATIONS

CONSTITUTIONS

US Constitution, 1st Amendment 1

US Constitution, 4th Amendment 1

STATUTES
Penal Law §240.30(1)(a) 1
CASES

Ford v. City of Yakima, 706 F.3d 1188 4


(9th Cir. 2013)

Nieves v. Bartlett, 2019 U. S. LEXIS 3557 4


(Sup. Ct. May 28, 2019)

Bennett v. Hendrix, 423 F3d 1247 (11th Cir. 2005) 4

Lacey v. Maricopa Cty., 693 F.3d 896, 917 5


(9th Cir. 2012)

People v. Munn, 179 Misc. 2d 903 (Crim. Ct. Queens 5


Co. 1999),

Pacherille v. County of Otsego, No. 3:13-CV-1282, 5-6


2014 WL 11515848 (NDNY Nov. 20, 2014), aff’d
sub nom, Pacherille v. Muehl, 619 F. App’x 18
(2nd Cir. 2015).
ARTICLES

“Britain cracks down on offensive tweets, Facebook 4


posts.” Associated Press, Nov. 15, 2012.

“China detains teenager over web post amid 4


social media crackdown,” TheGuardian.com,
September 20, 2013.
1

V. JURISDICTION

The United States Court of Appeals for the Second


Circuit affirmed the trial court’s grant of summary
judgment against the plaintiff-Appellant on March 13,
2019. This Court has jurisdiction under 28 U.S.C. §
1254(1). Jurisdiction in the trial court was based on 42
U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343 and 1367.

VI. CONSTITUTIONAL AND


STATUTORY PROVISIONS

The First Amendment to the United States Constitution


provides: “Congress shall make no law . . . abridging the
freedom of speech, or of the press; or the right of the people
. . . to petition the Government for a redress of grievances..”

The Fourth Amendment to the United States


Constitution provides, in pertinent part: “The right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.”

Aggravated Harassment in the Second Degree, Penal


Law § 240.30(1)(a) provided at the time the appellant was
arrested: "[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 . . .
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."
2

VII. STATEMENT OF THE CASE

The plaintiff had two prior encounters with the


defendant Captain Joseph Leo and one with the defendant
Detective Lakso. The plaintiff believed he had been
mistreated by the defendants at those times. In response,
he created a website called
lackawannanypolicecorruption.org. He also created a
Facebook page and posted numerous complaints about the
defendant Leo and the Lackawanna Police Department.
The postings were brought to the attention of Joseph
Leo in January 2014 and as a result, he approached
Detective Brian Lakso to find the postings on the internet
and determine what could be done to stop the plaintiff.
Defendant Joseph Leo did not own a personal computer in
January 2014 but was told by a member of the public about
the web postings. Leo went to Detective Lakso. Detective
Lakso prepared a criminal complaint which was signed by
Captain Leo. Both men understood this would initiate a
criminal prosecution of the plaintiff for aggravated
harassment.
Detective Lakso claims to have investigated at least
three to four dozen aggravated harassment complaints
based on postings on the internet or Facebook prior to this
one, however, the defendants have produced no evidence of
such prior charges being filed.
Based on the complaint, an arrest warrant was
issued and plaintiff was arrested and brought to the
Lackawanna Police station. Captain Leo was present at
that time in a supervisory role. Captain Leo was screaming
at plaintiff that he was a registered sex offender loud
enough for other prisoners to hear. He also called him a
“fucking douche bag” and said, “this is what your website
gets you.” Leo also said, “your TV is in my basement. I’m
enjoying it.” Plaintiff spent the night in jail and was
3

arraigned the next day. The judge ordered him held on


$25,000 bail which was he was not able to post until the
next day. He therefore spent another night behind bars at
the Holding Center.
On May 13, 2014, the Court of Appeals of New York
declared Penal Law §240.30 (1)(a) unconstitutional. This
was brought to the attention of the prosecutor so on the
third court appearance date for Mr. Boyler on May 27,
2014, a decision was made to dismiss the charge due to the
unconstitutionality of the statute.
The plaintiff filed suit for false arrest, malicious
prosecution and First Amendment retaliation.
The trial court erroneously held, based on very
dubious authority, that a website can constitute a
communication constituting aggravated harassment. The
court cited a case where this issue was not squarely
presented and then a summary order of the Second Circuit
which also did not delve into the issue and cannot be
binding precedent in any event.
The defendants also failed to present evidence of the
specific intent to annoy under the aggravated harassment
statute. Indeed, the specific intent of the plaintiff was pure
and protected political speech against perceived
governmental misconduct.
The defendants were not entitled to qualified
immunity as the available precedents never established a
right to penalize political speech against government
officials, particularly by means of the internet.
The Second Circuit affirmed the dismissal.
The issues are preserved for review by the Court.
4

VIII. ARGUMENT

This case involves the kind of police state tactics usually


seen in banana republics and authoritarian regimes such as
China. See, “China detains teenager over web post amid
social media crackdown,” TheGuardian.com, September 20,
2013. Such arrests are also common in the authoritarian
regime known as the United Kingdom which has no First
Amendment and indeed, no written constitution at all.
Surely, the country that threw off that tyranny a long time
ago can do better than to ape their thuggish approach to
free speech. See, “Britain cracks down on offensive tweets,
Facebook posts.” Associated Press, Nov. 15, 2012.
The plaintiff posted criticism of the government on
social media and got arrested in retaliation for his views.
Both the trial court and the Second Circuit, for reasons
known only to themselves, bent over backwards to
Jesuitically find a way to dismiss the case. For example, at
oral argument in the Second Circuit, Chief Judge
Katzmann argued that the plaintiff must prove that his
free speech was chilled by the retaliation, however this
point was raised sua sponte as that issue had never been
raised by the defendants or the trial court. In any event,
plaintiff’s counsel pointed out that by throwing the plaintiff
in jail for several days, the defendant did at least chill
plaintiff's free speech while he was caged up! This common
sense argument was, however, ignored by the court.
Furthermore, the Second Circuit’s adoption of a
subjective test for determining whether retaliation would
chill free speech puts it into direct conflict with the many
other circuits that have wisely adopted an objective test,
that is, would the retaliation--in this case, arrest and
jailing--“chill a person of ordinary firmness from future
First Amendment activity.” Ford v. City of Yakima, 706
F.3d 1188, 1193 (9th Cir. 2013), overruled on other grounds
by Nieves v. Bartlett, 2019 U. S. LEXIS 3557 (Sup. Ct. May
5

28, 2019); Bennett v. Hendrix, 423 F3d 1247 (11th Cir.


2005)(adopting the objective test and noting at least six
other Circuits that had already done so); see also, Lacey
v. Maricopa Cty., 693 F.3d 896, 917 (9th Cir. 2012) (“to
state that ‘[a]rresting someone in retaliation for their
exercise of free speech rights’ is sufficient to chill speech is
an understatement.”)
At oral argument, it was also pointed out that critical
statements relied upon by the District Court to uphold the
arrest, were made well after the arrest. Yet, the decision
was affirmed for reasons that boggle the mind and conjure
up Kafka. The trial court and the appellees responded by
pointing to statements the plaintiff made that were not
part of the original charges or the arrest! For example, the
appendix filed by the appellees appears to show that the
plaintiff’s reference to “punishing” Captain Leo, heavily
relied on by the trial court, was made after his arrest and
on or about August 4, 2015. [Respondents’ Appendix at A-
103]
That the court relied on events that had not yet occurred
to retroactively justify the arrest is a solid ground for
reversal.
In addition to sanctioning an outrageous violation of free
speech along the lines of the Alien and Sedition Act which
led to the landslide and revolutionary election of Thomas
Jefferson in 1800, the courts below erred in finding that
there was probable cause to justify the arrest. People v.
Munn, 179 Misc. 2d 903 (Crim. Ct. Queens Co. 1999), cited
by the defendants, interpreted different language from the
statute at issue in this case. The trial court, while not
citing Munn, held similarly that an internet post could
constitute aggravated harassment. In their brief on appeal,
the defendants continued to cite Munn, but offer no
rebuttal to our argument.
That being the case, and given that the plain language
of the statute (“transmitting or delivering”) necessarily
implies a direct communication, the only remaining
authority for the proposition that aggravated harassment
6

applies to internet postings is Pacherille v. County of


Otsego, No. 3:13-CV-1282, 2014 WL 11515848 (NDNY Nov.
20, 2014), aff’d sub nom, Pacherille v. Muehl, 619 F. App’x
18 (2nd Cir. 2015).
In our brief, we argued that Pacherille is irrelevant
because it is a summary order which explicitly states that it
does “not have precedential effect.” We also argued that
because the issue was not raised in the trial court in any
way, there was nothing for the Court of Appeals to affirm
with respect to whether a website could violate the statute.
We further argued that “While it’s tempting to call this
Court’s statement: ‘in this case, the posting of a website,’
dicta, and therefore not binding, the better view is that,
since it refers to an issue not even raised by the parties in
the trial court and this Court generally does not review
issues raised only on appeal, it is not even dicta.”
The appellees essentially offered no rebuttal to these
points other than that we offered no contrary citations.
However, we rest on the plain language of the statute,
never contradicted by any case directly on point and there
is no need to adduce a citation from state court stating that
the statute means what it says.
Since the trial court and Second Circuit erred in holding
that, under New York law, a website posting could
constitute a violation of the statute, it then follows that:

1. There was no probable cause for the


arrest and prosecution of the plaintiff.
2. There was no legal justification to take
action against the plaintiff for his
political speech.
3. Therefore, the plaintiff’s causes of
action for false arrest, malicious
prosecution and violation of his right to
free speech should be reinstated.

The defendants also have not demonstrated there are


no issues of fact with respect to the issue of probable cause
7

with respect to illicit specific intent to “harass, annoy,


threaten or alarm another person.” The appellees
essentially offered no rebuttal to this point. Since there is
no evidence of the type of malicious, purposeless intent the
statute requires, and the plaintiff had a clear, political
purpose in his speech, the court erred in granting summary
judgment.
Thus, Mr. Boyler has presented multiple and
compelling reasons why this Court should review the
summary order of the Second Circuit.

CONCLUSION

For the foregoing reasons, the Petition should be


granted.

Respectfully submitted,

MICHAEL KUZMA
Counsel of Record
1893 Clinton St.
Buffalo, New York 14206
(716) 822-7645
michaelkuzmaesq@gmail.com

JAMES OSTROWSKI
63 Newport Ave.
Buffalo, New York 14216
(716) 435-8918
jameso@apollo3.com

Counsel for Petitioner


8

APPENDIX

UNITED STATES DISTRICT COURT WESTERN


DISTRICT OF NEW YORK

_______________________________________________________

SCOTT A. BOYLER,

Plaintiff, DECISION AND ORDER


1:15-CV-00355 EAW

v.

THE CITY OF LACKAWANNA, JOSEPH LEO,


individually and in his official capacity as Captain a/the
City 0/ Lackawanna Police, and BRIAN LAKSO,
individually and in his official capacity as a City
a/Lackawanna Police Detective,

Defendants.

INTRODUCTION

Plaintiff Scott Boyler ("Plaintiff') commenced this


civil rights action against Captain Joseph Leo ("Captain
Leo") and Detective Brian Lakso ("Detective Lakso") of the
City of Lackawanna Police Department (collectively, the
"Individual Defendants"), alleging causes of action under 42
U.S.C. § 1983 and New York State common law. (Dkt. 1).
Specifically, Plaintiff claims that he was subjected to an
unlawful arrest and criminal prosecution after engaging in
protected speech under the First Amendment of the United
States Constitution. Plaintiff asserts six claims pursuant to
§ 1983 against the Individual Defendants, and four common
law claims against all Defendants. Plaintiff’s common law
9

claims against the City are premised upon the doctrine of


respondeat superior.
Presently before the Court is Defendants' motion for
summary judgment. (Dkt. 27). For the following reasons,
Defendants' motion is granted, and Plaintiffs complaint is
dismissed.
BACKGROUND 1 0F

Prior to the events underlying this action, Plaintiff


"was arrested on at least two occasions and had
interaction[s] with Captain Leo." (Dkt. 27-2 at ~ 11; Dkt.
30-1 at ~ 11). Plaintiff was displeased with his treatment
by police officials during these interactions, and claimed
that Captain Leo had "unlawfully confiscated" some of his
personal belongings. (Id.). As a result, Plaintiff created a
website and a Facebook page where he expressed various
opinions regarding the City of Lackawanna, law
enforcement officials, and various authority figures,
including Captain Leo. (Id.). The website was named
"Lackawanna, New York police corruption." (Dkt. 27-9 at 19
(Plaintiffs N.Y. Gen. Mun. Law § 50-h examination».
Plaintiff made various postings, including some that
described Captain Leo as a "liar," "a sociopath, a
[k]Ieptomaniac," "a compulsive liar," "abusive,"
"tormentive," and "sick." (Id. at 20). Plaintiff also posted,
"you [referring to Captain Leo] and your disgusting pigpen
at parasite hall are going to pay for your crime." (Dkt. 27-2
at ~ 16; Dkt. 30-1 at ~ 16). Plaintiff indicated that he was
going to "enjoy punishing [Captain Leo] and [y]our gang in
every conceivable way." (Dkt. 27-2 at ~ 17; Dkt. 30-1 at ~
17; see Dkt. 27- [Page 3 of 30] 10 at 19). Plaintiff also
posted photographs of Captain Leo and called him vulgar
and derogatory names, such as a "psychopathic pig fucker."

The following facts are taken from Defendants' Rule 56.1 Statement of
1

Material Facts (Dkt. 27-2), Plaintiffs Response to Defendants' Rule 56.l


Statement of Material Facts (Dkt. 30-1), Plaintiffs deposition (Dkt. 27-
10), Captain Leo's deposition (Dkt. 27- 17), and Detective Lakso's
deposition (Dkt. 27-18), unless otherwise indicated.
10

(Dkt. 27-10 at 18; see Dkt. 27-2 at ~ 15; Dkt. 30-1 at~ 15).
Plaintiff invited others to submit comments about Captain
Leo online as well. (Dkt. 27-10 at 20). Plaintiff also testified
that had Captain Leo read the posted statements, he
"might" find them annoying. (ld. at 19-20; see Dkt. 27-2 at ~
18; Dkt. 30-1 at 18).
Captain Leo testified that he does not "go on the
websites," maintain a Facebook account, or frequent the
Internet, and that it was an unidentified individual who
initially brought these postings to his attention. (Dkt. 27-17
at9-10; see Dkt. 27-2 at~ 22; Dkt. 30- 1 at ~ 22). Captain
Leo then approached Detective Lakso with a screenshot of
one of Plaintiffs posts, and requested that Detective Lakso
review the website and Facebook postings. (Dkt. 27-2 at ~~
23-24; Dkt. 30-1 at ~~ 23-24). Detective Lakso reviewed the
website and Facebook postings in Captain Leo's presence,
and had Captain Leo review certain excerpts from the web
pages. (Dkt. 27-17 at 9-11,14-15).
Captain Leo testified that he believed the posted
statements were annoying, harassing, and threatening.
(Dkt. 27-17 at 22). Detective Lakso testified that, on
previous occasions, he had filed criminal charges for
aggravation in the second degree based upon
communications transmitted over the Internet. (Dkt. 27-18
at 8-12). On January 2, 2014, Captain Leo lodged a
criminal complaint with the City of Lackawanna Police
Department, asserting allegations of aggravated
harassment in the second degree. (Dkt. 27-2 at ~ 38; Dkt.
30-1 at ~ 38). Detective Lakso drafted the complaint and
reviewed it with Captain Leo before he signed it. (Dkt. 27-
18 at 14-15; see Dkt. 27-14 (criminal complaint with [Page
4 of 30] attached screenshots)). Detective Lakso completed
a police report on the same day. (Id.; see Dkt. 27-14
(Detective Lakso's police report)). Detective Lakso also
submitted the criminal complaint for review by a state
court judge. (Dkt. 27-18 at 25).
On January 3, 2014, Lackawanna City Court Judge
Frederic Marrano issued a warrant for Plaintiff s arrest
11

pursuant to the provisions of the second degree aggravated


harassment statute. (Dkt. 27-16). Subsequently, law
enforcement officials in the Village of Angola, New York,
arrested Plaintiff on April 30, 2014. (Dkt. 27-10 at 24-25). 2 1F

Plaintiff appeared before Lackawanna City Court Judge


Norman LeBlanc on May 1, 2014, where he entered a plea
of not guilty. (Dkt. 27-2 at ~ 43; Dkt. 30-1 at ~ 43). On May
l3, 2014, the New York Court of Appeals struck down the
aggravated harassment in the second degree provision at
issue as unconstitutionally vague under the New York
State and Federal Constitutions. See People v. Golb, 23 N.Y
2d 455,466-68 (2014). 3 On May 27,2014, the prosecution
2F

moved to voluntarily dismiss Plaintiff s charges during a


proceeding in Lackawanna City Court, and Judge Marrano
dismissed the case. (Dkt. 27-21; see Dkt. 27- 2 at ~ 46; Dkt.
30-1 at ~ 46).
PROCEDURAL HISTORY
On April 23, 2015, Plaintiff commenced this action
against Defendants, alleging various causes of action for
the deprivation of his constitutional rights pursuant to §
1983, [Page 5 of 30] as well as several claims under New
York State common law. (Dkt, 1). Under the framework of §
1983, Plaintiff asserts claims for malicious prosecution
(first cause of action), false arrest (second cause of action),
failure to intercede to prevent an unconstitutional act
(third cause of action), violation of his right to free speech
(fourth cause of action), assault (fifth cause of action), and
battery (sixth cause of action). (Dkt. 1 at 6-11). These
claims are only asserted against the Individual Defendants.
Under state common law principles, Plaintiff alleges
companion claims for malicious prosecution (seventh cause
of action), false arrest (eighth cause of action), assault

The testimony indicates that the delay in executing the arrest


2

warrant may have been caused by the fact that law enforcement
authorities had some difficulty determining Plaintiff s location at the
time. (Dkt. 27-17 at 19; see Dkt. 27-2 at ~ 41; Dkt. 30-1 at ~ 41).
The statute has since been amended. See N.Y. Penal Law §
3

240.30(l)(a).
12

(ninth cause of action), and battery (tenth cause of action).


The common law claims are asserted against all
Defendants. 4 Defendants answered the complaint, and
3F

raised a number of affirmative [Page 6 of 30] defenses,


including the doctrine of qualified immunity. (Dkt. 3). After
discovery was completed, Defendants filed the instant
motion requesting that summary judgment be granted in

The Court notes that Plaintiff has not alleged any municipal policy or
4

custom that would form·the basis of a claim against the City under the
framework of Monell v. Dep't of Soc. Servs. of City of New York, 436
U.S. 658 (1978), and its progeny. (See Dkt. 1). In Monell, the Supreme
Court explained:

the language of § 1983 ... compels the conclusion that


Congress did not intend municipalities to be held liable
unless action pursuant to official municipal policy of
some nature caused a constitutional tort. In particular,
we conclude that a municipality cannot be held liable
solely because it employs a tortfeasor-or, in other words,
a municipality cannot be held liable under § 1983 on a
respondeat superior theory.

Monell, 436 U.S. at 691. Indeed, Defendants posit this as one reason to
dismiss the claims asserted against the City. (Dkt. 27-23 at 7-10).
Notably, Plaintiffs response does not rebut this assertion, and instead,
argues only that each of the claims asserted against the City is based
on state common law principles, and thus, is properly based upon a
theory of respondeat superior. (See Dkt. 30 at 16). The Court agrees
that no municipal policy or custom is required to assert common law
claims against a municipal defendant under a theory of vicarious
liability. See Lore v. City of Syracuse, 670 FJd 127, 168 (2d Cir. 2012)
("No municipal custom or policy need be proven to establish the liability
of the [c]ity for violation of ... state law, for '[m]unicipalities
surrendered their common-law tort immunity for the misfeasance of
their officers and employees long ago.'" (quoting Tango v. Tulevech, 61
N.Y.2d 34, 40 (1983»); L.B. v. Town a/Chester, 232 F. Supp. 2d 227,239
(S.D.N.Y. 2002) ("Unlike cases brought under § 1983, municipalities
may be liable for the common law torts, like false arrest and malicious
prosecution, committed by their employees under the doctrine of
respondeat superior.").
13

their favor. (Dkt. 27). Plaintiff opposes the motion. (Dkt.


30). Oral argument was held before the undersigned on
December 13,2017, at which time the Court reserved
decision.
DISCUSSION
I. Defendants' Motion For Summary Judgment
A. Legal Standard
Rule 56 of the Federal Rules of Civil Procedure
provides that summary judgment should be granted if the
moving party establishes "that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). The
Court should grant summary judgment if, after considering
the evidence in the light most favorable to the nonmoving
party, the court finds that no rational jury could find in
favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986».
"Where the non-moving party will bear the burden of
proof at trial, the party moving for summary judgment may
meet its burden by showing the 'evidentiary materials of
record, if reduced to admissible evidence, would be
insufficient to carry the non-movant's burden of proof at
trial." Rowe v. Wal-Mart Stores, Inc., 11 F. Supp. 2d 265,
266 [Page 7 of 30] (W.D.N.Y. 1998). Once the moving party
has met its burden, the opposing party '''must do more than
simply show that there is some metaphysical doubt as to
the material facts.. .. [T]he nonmoving party must come
forward with specific facts showing that there is a genuine
issue for trial:" Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec., 475 U.S. at 586-
87). "[Tjhe mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment. ... " Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
B. Any § 1983 Claims Asserted Against tile
Individual Defendants in their Official Capacity Must be
Dismissed
14

Defendants argue that Plaintiffs § 1983 claims


asserted against the Individual Defendants, while acting in
their official capacity, must be dismissed pursuant to the
Eleventh Amendment. (Dkt. 27-23 at 10-11). "[C]laims
against municipal officials in their official capacities are
really claims against the municipality .... " Wallikas v.
Harder, 67 F. Supp. 2d 82, 83 (N.D.N.Y. 1999); see
Kentucky v. Graham, 473 U.S. 159, 165 (1985) ("Official-
capacity suits ... generally represent only another way of
pleading an action against an entity of which an officer is
an agent." (quotation marks and citation omitted). "More is
required in an official-capacity action, ... for a governmental
entity is liable under § 1983 only when the entity itself is a
moving force behind the deprivation; thus, in an official-
capacity suit the entity's policy or custom must have played
a part in the violation of federal law." .Graham, 473 U.S. at
166 (quotation marks and citations omitted). A § 1983 claim
"against a[ municipal] official sued in his official capacity ...
cannot be sustained unless the plaintiff shows that the
violation of [his or] her federal rights was the [Page 8 of 30]
result of a municipal custom or policy." Lore v. City of
Syracuse, 670 F2d 127,168 (2d Cir.2012).
"Because (P]laintiff has offered no evidence that the
actions of the [Individual Defendants] were taken pursuant
to a municipal policy or custom, summary judgment with
respect to the [Individual Defendants] in their official
capacities is appropriate" with regard to the § 1983 causes
of action, and those claims are dismissed without prejudice.
Hamilton v. City of New Haven, 213 F. Supp. 2d 125, 132
(D. Conn. 2002); see Hudson v. Lockhart, 554 F. Supp. 2d
494, 497 (S.D.N.Y. 2008) ("[The plaintiff]'s § 1983 claim
against the named [defendants in their official capacity
must be dismissed as well because he has failed to state
that the alleged violation of the constitutional rights at
issue derived from a municipal policy or practice.").
However, "[n]o municipal custom or policy need be proven
to establish the liability of the City for violation of . . . state
law, for '[municipalities surrendered their common-law tort
15

immunity for the misfeasance of their officers and


employees long ago." Lore, 670 F.3d at 168 (quoting Tango
v. Tulevech, 61 N.Y.2d 34, 40 (1983)); Breitkopf v. Gentile,
41 F. Supp, 3d 220,250 n.21 (E.D.N.Y. 2014) (same); see
also Will v. Mich. Dep 't of State Police, 491 U.S. 58, 70
(1989) ("States are protected by the Eleventh Amendment
while municipalities are not. ... "). As such, to the extent
that Plaintiffs state common law claims are asserted
against the Individual Defendants in their official capacity,
they are not barred by the Eleventh Amendment. The I
Court now turns to the Individual Defendants' defense of
qualified immunity as applied to Plaintiffs first, second,
and fourth causes of action. [Page 9 of 30]
C. The Individual Defendants are Entitled to
Qualified Immunity as to the First, Second, and Fourth
Causes of Action Asserted Against Them in Their
Individual Capacity
1. Plaintiff's Fourth Cause of Action for the Violation
of his First Amendment Right to Free Speech Under § 1983
"The qualified-immunity doctrine shields
'government officials performing discretionary functions ...
from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.'"
X'Men Sec., Inc. v. Pataki, 196 F.3d 56, 65 (2d Cir. 1999)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
"The doctrine of qualified immunity protects government
officials from liability for civil damages 'unless a plaintiff
pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was
clearly established at the time of the challenged conduct."
McGowan v. United States, 825 F.3d 118, 124 (2d Cir.
2016) (quoting Wood v. Moss, 134 S. Ct. 2056, 2066-67
(2014)). 5 "In determining whether a right was so clearly
4F

Defendants suggest that there are three prongs under this analysis
5

pursuant to XMen Sec., Inc. v. Pataki, 196 FJd 56 (2d Cir. 1999). The
third prong is intended to determine whether "the defendant's action
16

established, the Supreme [Page 10 of 30] 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. '" Barboza v.
D'Agata, 676 F. App'x 9, 12 (2d Cir. 2017) (quoting Saucier
v. Katz, 533 U.S. 194,202 (2001». "In making this
determination, [this Court must] consider Supreme Court
and Second Circuit precedent as it existed at the time of the
challenged conduct." McGowan, 825 FJd at 124. "The
second prong of the standard means that officials are
'entitled to qualified immunity [when] their decision was
reasonable, even if mistaken,' which 'protect]s] all but the
plainly incompetent or those who knowingly violate the
law." Johnson v. Perry, 859 FJd 156, 170 (2d Cir. 2017)
(quoting Hunter v. Bryant, 502 U.S. 224,229 (1991».
At one time, courts were required to undertake the
two-prong inquiry in strict sequence. See Saucier, 533 U.S.
at 201 ("A court required to rule upon the qualified
immunity issue must consider, then, this threshold
question: Taken in the light most favorable to the party

was objective[ly] legal[Iy] reasonable[ ] ... in light of the legal rules that
were clearly established at the time it was taken." X-Men Sec., Inc.,
196F.3d at 66 (quotation marks and citation omitted). For a time,
courts in this Circuit struggled with whether a third prong existed or
whether the "reasonableness" analysis was incorporated within the
second prong. See Bailey v. Pataki, 708 F.3d 391, 404 n.8 (2d Cir. 2013)
("There is some tension in our Circuit's cases as to whether the
qualified immunity standard is of two or three parts, and whether the
'reasonable officer' inquiry is part of step two-the 'clearly established'
prong-or whether it is a separate, third step in the analysis."). However,
the Supreme Court has since explained that "[i]n resolving questions of
qualified immunity at summary judgment, courts engage in a two-
pronged inquiry," Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014), and
recent Second Circuit case law reflects this clarification in the law. See
Ganek v. Leibowitz, 874 F.3d 73, 80 (2d Cir. 2017); Johnson v. Perry,
859 F.3d 156,169-70 (2d Cir. 2017); Barboza v. D'Agata, 676 F. App'x 9,
12 (2d Cir. 2017); McGowan v. United States, 825 F.3d 118, 124 (2d Cir.
2016). In other words, whether a defendant's actions were "objectively
legally reasonable" is considered in the context of the clarity of the legal
rules at the time of the purportedly unlawful conduct.
17

asserting the injury, do the facts alleged show the officer's


conduct violated a constitutional right? This must be the
initial inquiry."). However, the Supreme Court has since
retreated from this rigid approach. While acknowledging
that "the sequence set forth [in Saucier] is often
appropriate," the Court held that "it should no longer be
regarded as mandatory. The judges of the district courts
and the courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two prongs
of the [Page 11 of 30] ' qualified immunity analysis should
be addressed first in light of the circumstances in the
particular case at hand." Pearson v. Callahan, 555 U.S.
223, 236 (2009). In the interests of efficiency, the Court will
address the second prong first, which the Court finds to be
dispositive.
Defendants argue that even if the Individual
Defendants' conduct violated Plaintiffs federal rights, those
rights were not clearly established at the time of their
actions. (Dkt. 27-23 at 12-13). Specifically, Defendants
argue that given the alarming nature .and substance of the
posts, the Individual Defendants acted reasonably in
determining that Plaintiff had violated the aggravated
harassment statute. (See id.). Plaintiff responds that
Defendants' position is incorrect because the facts of the
instant matter. involve politically-charged posts to a
website, and thus, are not akin to "direct communication by
email" or cases involving threats of bodily harm. (Dkt. 30 at
8-12).
At the time the criminal complaint was filed and
Plaintiff was arrested, the language found in New York's
second-degree aggravated harassment statute provided: 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 . . . 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. N.Y. Penal Law § 240.30(1)(a).
18

The criminal complaint in this action was premised upon


this subdivision. (See Dkt. 27-11 at 16; Dkt. 27-16).
Notably, the criminal complaint was filed on January 2,
2014 (Dkt. 27-11 at 16), and the arrest warrant was issued
on January 3, 2014 (Dkt. 27-16). Law enforcement officials
arrested Plaintiff a few months later in April 2014. (Dkt.
27-10 at 24-25). However, on May 13,2014, the New York
Court of [Page 12 of 30] Appeals struck down this statutory
provision as facially unconstitutional under the New York
State and Federal Constitutions. See People v. Golb, 23
N.Y.3d 455, 466-68 (2014). As noted above, soon after Golb
was decided, the prosecution voluntarily dismissed
Plaintiffs charges. (Dkt. 27-21).
Plaintiff argues that even though all of the
materially relevant acts giving rise to his claims in this
action were completed prior to the Golb decision, another
New York State Court of Appeals decision from 2003
"clearly established the law in this area." (Dkt. 30 at 11).
Plaintiff refers to People v. Mangano, 100 N.Y.2d 569
(2003), where the defendant left five "crude and offensive"
messages for the Village of Ossining's Parking Violation
Bureau after she received parking tickets. See id. at 570-71.
The charges were based on the same statutory provision at
issue here, but the New York State Court of Appeals did
not strike down the statute as unconstitutional. Instead,
the court distinguished its prior precedent and held that
the defendant's messages did not fall within any of the
categories of proscribable speech or conduct. Id. at 57l.
Specifically, the court stated that while "defendant's
messages were crude and offensive," they 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." Id.
Plaintiff's argument has already been rejected by the
Second Circuit in Barboza v. D 'Agata, 676 F. App' x 9 (2d
Cir. 2017). In Barboza, the Second Circuit noted that
Mangano merely distinguished prior precedent in finding
that the defendant's speech was not proscribable under the
19

circumstances presented. Id. at 13. The Second Circuit also


emphasized that the Mangano defendant transmitted the
offensive comments "through a [Page 13 of 30] channel 'set
up for the purpose ... of receiving complaints from the
public. '" Id. at 13 (quoting Mangano, 100 N.Y.2d at 571).
Barboza then went on to conclude that "neither Mangano
nor any other case clearly established such a First
Amendment right at the time of the events at issue," and
that it was only after Golb was decided that the issue was
clarified. Id. at 13-14; see Vives v. City of New York, 405
F.3d 115, 118 n.6 (2d Cir. 2005) ("In Mangano, ... the New
York Court of Appeals did not declare section 240.30(1)
unconstitutional."). Accordingly, Plaintiffs reliance upon
pre-Golb New York decisional law is misplaced.
Plaintiff also attempts to distinguish this case on the
ground that he posted the communications at issue on
public websites instead of transmitting them by email or
some other more direct method. (Dkt. 30 at 9-10). However,
again, the Second Circuit has already determined that
website communications fall within the ambit of the then-
existing aggravated harassment statute. In Pacherille v.
County of Otsego, No.3: 13-CV-1282, 2014 WL 11515848
(N.D.N.Y. Nov. 20, 2014), aff'd sub nom. Pacherille v.
Muehl, 619 F. App'x 18 (2d Cir. 2015), the plaintiff had
created a website entitled "coophallofshame.com," which
was very critical of an Otsego County Court Judge and the
Otsego County District Attorney, among others. ld. at *2.
Based on the content of the website posts, a search warrant
application was filed and then executed. ld. at *2, *9-10.
The district court ultimately determined that the
allegations in the search warrant application set forth the
necessary probable cause "to believe that [the p]laintiff - or
someone at his home - transmitted a form of written
communication (the website's written postings) with intent
[Page 14 of 30] to harass, annoy, threaten, or alarm [the
defendant], and that the communication was done in a
manner likely to cause annoyance or alarm." ld. at * 10.
20

In affirming the district court's decision, the Second


Circuit determined that the defendants were "entitled to
qualified immunity" for the "claims arising from the search
and arrest warrants," in part, because "it was objectively
reasonable for them to conclude that they could rely on
written communications-in this case, the posting of a
website-to establish probable cause for the warrants."
Pacherille v. Muehl, 619 F. App'x 18, 19 (2d Cir. 2015).
Thus, Plaintiff's argument that the communications are
distinguishable as web postings lacks merit. Plaintiff
directed these communications at Captain Leo by posting
them on public websites. Thus, the Individual Defendants
could rely upon them in determining whether probable
cause existed to arrest Plaintiff for aggravated harassment
in the second degree.
Plaintiff and Defendants argue that the district court
decision in Barboza v. D 'Agata, 151 F. Supp. 3d 363
(S.D.N.Y. 2015) supports their respective positions.
Barboza involved the use of politically-charged speech on
the back ofa parking ticket. ld. at 370. Specifically, the
plaintiff in that case argued that the defendants "violated
his right to be free from arrest without probable cause and
his right to be free from arrest in retaliation for writing
'fuck your shitty town bitches' on a parking ticket which he
asserts is protected speech." ld. The district court found,
first, that the arrest was a violation of free speech. ld. The
court then found that while § 240.30 was not facially
unconstitutional at the time, the plaintiff's right to free
speech was "clearly established" because, as applied to him,
the plaintiff had a right to use such speech in criticizing
governmental officials. ld. at 371-72 [Page 15 of 30]
(relying, in part, on Mangano). However, the court then
determined that it was still objectively reasonable for the
officer defendants to file the charges and execute the arrest
because the prosecutor instructed them toward this end,
and because both the prosecutor and the reviewing judge
approved of the charges. See id. at 372-73.
21

Defendants posit that Barboza generally supports


their position under the objective reasonableness standard.
(Dkt. 27-23 at 23). Plaintiff counters by arguing that the
Barboza rationale does not apply to the instant facts where
the Individual Defendants were never ordered by a
prosecutor to file the charges at issue. (Dkt. 30 at 11-12).
However, in affirming the district court's decision, the
Second Circuit determined that the defendants were
entitled to qualified immunity, not merely because the
prosecutor ordered the charges to be filed, but because the
First Amendment right had not yet been clearly established
at the time of the allegedly wrongful conduct. See Barboza,
676 F. App'x at 15. Specifically, the Second Circuit noted
that "[ojn the totality of these circumstances, we cannot
conclude that no reasonable officer in the position of [the
defendants] could have believed that [the plaintiff] could be
arrested for aggravated harassment without violating the
First Amendment." Id. The court emphasized that at the
time, the New York Court of Appeals "had recognized both
permissible and impermissible applications of the statute,"
and thus, under these circumstances, the constitutionality
of § 240.30 was not "beyond debate." Id. This rationale is
equally applicable to the instant case.
Plaintiff also appears to suggest that Captain Leo
should have "research [ed] the constitutional right of free
speech before filing the charges." (Dkt. 30 at 8). However,
"[i]n determining whether an officer is entitled to qualified
immunity, [t]he question is not [Page 16 of 30] what a
lawyer would learn or intuit from researching case law, but
what a reasonable person in a defendant's position should
know about the constitutionality of the conduct." Amore v.
Novarro, 624 FJd 522, 533-34 (2dCir. 2010) (quotation
marks and citation omitted); see Pacherille, 2014 WL
11515848, at * 10 ("[A]n objectively reasonable officer
would not have known, or grasped, the nuances of the
interplay between the dictates of N.Y. Penal Law §
240JO(1)(a) and the First Amendment right to free
speech."); see also Connecticut ex rel. Blumenthal v. Crotty,
22

346 FJd 84, 103 (2d Cir. 2003) ("Absent evidence that the
ordinance authorized conduct which is patently violative of
fundamental constitutional principlesj.] ... an officer who
reasonably relies on the legislature's determination that a
statute is constitutional should be shielded from personal
liability ." (quotation marks and citation omitted».
It is worth noting that "[a]n 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." Barboza, 676 F. App'x at 15
(quoting Malley v. Briggs, 475 U.S. 335,341 (1986».
However, "the threshold for establishing this exception is a
high one." Messerschmidt v. Millender, 565 U.S. 535, 547
(2012). Here, Detective Lakso presented the criminal
complaint to the City Court Judge who, evidently, found its
allegations to establish probable cause for the issuance of
an arrest warrant. (See Dkt. 27-16). This detail, coupled
with the additional fact that the issue raised is a matter of
constitutional law, which is "not one officers could be
expected to identify at 'a simple glance, '" further supports
the conclusion that any error committed by the Individual
[Page 17 of 30] Defendants was not unreasonable. See
Barboza, 676 F. App'x at 15 (quoting Messerschmidt, 565
U.S. at 555).
Additionally, because the doctrine of qualified
immunity "affords' officials 'breathing room to make
reasonable but mistaken judgments' without fear of
potentially disabling liability," Zalaski v. City of Hartford,
723 F.3d 382,389 (2d Cir. 2013) (quoting Messerschmidt,
565 U.S. at 546), the court must use "a deliberately
'forgiving' standard of review" in determining its
application. Id. (quoting Amore, 624 F.3d at 530). To this
point, "[a]n officer is entitled to qualified immunity if he
can establish that there was 'arguable probable cause' to
arrest." Adebiyi v. City of New York, No. 13-CV-480 (WFK)
(CLP), 2014 WL 4922888, at *5 (E.D.N.Y. Sept. 30, 2014)
23

(quoting Escalera v. Lunn, 361 FJd 737, 743 (2d Cir. 2004)).
Arguable probable cause is an "analytically distinct test for
qualified immunity" that "is more favorable to the officers
than the one for probable cause." Escalera, 361 FJd at 743.
"Arguable probable cause exists 'if either (a) it was
objectively reasonable for the officer to believe that
probable cause existed, or (b) officers of reasonable
competence could disagree on whether the probable cause
test was met.?' Id. (quoting GoZino v. City of New Haven,
950 F.2d 864, 870 (2d Cir. 1991)). The Court finds that
Plaintiffs posts, which included derogatory and exceedingly
vulgar attacks against Captain Leo, and that evinced a
desire to "punish" him in some manner, comfortably fall
within the scope of the previous version of the aggravated
harassment statute. Specifically, Plaintiff posted
statements that described Captain Leo as a "liar," "a
sociopath, a [k]leptomaniac," "a compulsive liar," "abusive,"
"tormentive," and "sick." (Dkt. 27-9 at 20; see Dkt. 27-2 at ~
11; Dkt. 30-1 at ~ 11). Plaintiff also posted that [Page 18] of
30 Captain Leo and his "disgusting pigpen at parasite hall
are going to pay for your crime." (Dkt. 27-2 at ~ 16; Dkt. 30-
1 at ~ 16). Plaintiff indicated that he was going to "enjoy
punishing [Captain Leo] and [y]our gang in every
conceivable way." (Dkt. 27-2 at ~ 17; Dkt. 30-1 at ~ 17; see
Dkt. 27-10 at 19). Furthermore, Plaintiff posted
photographs of Captain Leo and called him vulgar and
derogatory names, such as a "psychopathic pig fucker" (Dkt.
27-10 at 18; see Dkt. 27-2 at ~ 15; Dkt. 30-1 at ~ 15), and
Plaintiff invited others to submit comments about Captain
Leo online as well (Dkt. 27-10 at 20). Plaintiff even testified
that had Captain Leo read the posted statements, he
"might" find them annoying. (ld. at 19-20; see Dkt. 27-2 at ~
18; Dkt. 30-1 at ~ 18). Thus, the Court easily finds that it
was "objectively reasonable for the [Individual Defendants]
to believe that probable cause existed." Escalera, 361 F.3d
at 743 (quotation marks omitted).
However, under the circumstances in this case, the
Court also finds that actual "probable cause" existed to
24

charge and arrest Plaintiff under the second degree


aggravated harassment statute. "Probable cause to arrest
exists when the arresting officer has 'knowledge or
reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be
arrested has committed or is committing a crime. ", Jd.
(quoting Weyant v. Okst, 101 F.3 d 845, 852 (2d en. 1996)).
The "case law has given § 240.30 a wide ambit." Adebiyi,
2014 WL 4922888, at *7 (collecting cases); see Quinn v. City
of New York, No. 99 CV 7068 JBW, 2003 WL 1090205, at *3
(B.D.N.Y. Mar. 12, 2003) ("Courts have interpreted the
statute broadly."). Indeed, a number of cases have held that
an arrest was justified by actual probable cause under
circumstances involving communications equally or even
less [Page 19 of 30] alarming than those found in the
instant matter. See Silver v. K'uehbeck, 217 F. App 'x 18,
22 (2d Cir. 2007) (finding that alleged facts "clearly"
established probable cause for an arrest under § 240.30(1)
where the plaintiff "attempted to contact [the defendant]
and left messages 'about her evident lack of consideration
and disrespect'"); Leibovitz v. City of New York, No. 14 Civ.
3297 (RA) (JCF), 2016 WL 3671232, at *5 (S.D.N.Y. Mar.
17, 2016) (finding that "probable cause" to arrest under §
240.30(1) was sufficiently established where it was alleged
that "the plaintiff called [a third party] and left her
numerous voice messages wherein he threatened to sue
her," and that these calls caused the third party
"'annoyance and alarm'"), report and recommendation
adopted, No. 14- CV-3297 (RA), 2016 WL 3661530 (S.D.N.Y.
July 1,2016), appeal dismissed(2d Cir. 16- 2434 Oct. 7,
2016); Dzwonczyk v. Syracuse City Police Dep t, 710 F.
Supp. 2d 248,266 (ND.N.Y. 2008) (finding probable cause to
arrest under § 240.30(1) where the plaintiff repeatedly
communicated that the recipient "'needed to find God and
that [he] was a Devil worship[]er"'). Accordingly, the Court
also finds that the Individual Defendants held "knowledge
or reasonably trustworthy information of facts and
25

circumstances that are sufficient to warrant a person of


reasonable caution in the belief that the person to be
arrested has committed or is committing a crime." Escalera,
361 F.3d at 743 (quotation marks omitted).
Given the nature and substance of Plaintiffs Internet
posts, it was "objectively reasonable for [the Individual
Defendants] to conclude that they could rely on [the]
written communications ... to establish probable cause for
the [arrest] warrant[]." Pacherille,619 F. App'x at 19.
Therefore, because Plaintiffs right to free speech was not
clearly [Page 20 of 30] established at the time the criminal
complaint was filed or at the time Plaintiff was arrested
upon those charges, the Court concludes that the Individual
Defendants are entitled to qualified immunity, and
summary judgment is warranted in favor of Defendants on
Plaintiff s fourth cause of action.
2. Plaintiff's First and Second Causes of Action for
Malicious Prosecution and False Arrest Under § 1983
Similarly, because "the undisputed facts establish
that [Plaintiff’s arrest and prosecution were supported by
arguable probable cause, ... the [I]ndividual [Defendants
are entitled to qualified immunity on [Plaintiff’s false arrest
and malicious prosecution claims as a matter of law." Diop
v. City of New York, 50 F. Supp. 3d 411, 425 (S.D.N.Y.
2014); see Castro v. County of Nassau, 739 F. Supp. 2d 153,
172 (E.D.N.Y. 2010) (finding that "there are no triable
issues of fact as to whether [the defendant] had arguable
probable cause," and thus, the defendant was "entitled to
qualified immunity on the false arrest and malicious
prosecution claims"); Hardin v. Meridien Foods, No. 98 CIV.
2268 (BSJ), 2001 WL 1150344, at *6 (S.D.N.Y. Sept.
27,2001) (stating that "the Court applies the same standard
used to evaluate qualified immunity in the false arrest
context" as in the malicious prosecution context). Indeed, as
stated above, the Court finds that the Individual
Defendants had "actual probable cause," even though all
that is necessary for a qualified immunity defense is
"arguable probable cause." See Gaston v. City of New York,
26

851 F. Supp. 2d 780, 795-96 (S.D.N.Y. 2012) ("[S]ince [the


defendant detective] had actual probable cause but only
need[ ed] to have had arguable probable cause to be entitled
to qualified immunity, (the defendant detective] is entitled
to summary judgment on the [Page 21 of 30] plaintiff's false
arrest ... and malicious prosecution claims on qualified
immunity grounds.").
Accordingly, to the extent that Plaintiff asserts §
1983 causes of action for malicious prosecution and false
arrest against the Individual Defendants in their individual
capacity, summary judgment is warranted in favor of
Defendants on qualified immunity grounds.
D. Plaintiff's Fifth and Sixth Causes of Action for
Assault and Battery Fail to State a Cognizable Claim for
Relief Under § 1983
At the outset, the Court notes that Plaintiff has
alleged separate assault and battery causes of action under
§ 1983 and New York State common law. (See Dkt. 1 at 9-
11). The Court has not found any case that recognizes
either an assault or a battery claim grounded in § 1983, and
Plaintiffs counsel failed to provide a satisfactory reason
during oral argument for recognizing federal assault and
battery claims in this context. See Henderson v. Williams,
No. 3:10-CV-1621 (JCH), 2013 WL 1984545, at *3 n.3 (D.
Conn. May 13, 2013) ("To the extent that [the plaintiff]
believes he has raised claims for the torts of assault and
battery, the court disagrees because ... there is no federal
common law claim for assault or battery."). Instead, it is
the Court's view that Plaintiffs fifth and sixth causes of
action, alleging an assault and battery under § 1983,
respectively, are properly formulated as excessive force
claims. However, Plaintiffs counsel conceded at oral
argument that the complaint does not allege a § 1983
excessive force claim. (See also Dkt. 27-10 at 31 (Plaintiff
testifying that he is not alleging a § 1983 excessive use of
force claim)).
Indeed, it is apparent why Plaintiff concedes he is
not asserting such a claim. The only physical affliction that
27

Plaintiff apparently suffered as a result of the arrest was


some [Page 22 of 30] temporary "discomfort" from being
handcuffed, but he did not receive any injuries from the
handcuffs. (Dkt. 27-10 at 29); see Arnold v. Westchester
County, No. 09 Civ. 3727 (JSR) (GWG), 2012WL 336129, at
*9 (S.D.N.Y. Feb. 3, 2012) ("[T]here is a consensus among
courts in this [C]ircuit that tight handcuffing does not
constitute excessive force unless it causes some injury
beyond temporary discomfort." (quotation marks and
citations omitted)), report and recommendation adopted,
No. 09 Civ. 3727 (JSR), 2012 WL 841484 (S.D.N.Y. Mar.
13,2012); Lynch ex rei. Lynch v. City of Mount Vernon, 567
F. Supp. 2d 459, 468 (S.D.N.Y. 2008) (same). Plaintiff
admits that he did not need any professional medical or
psychiatric treatment as a result of any injury he may or
may not have sustained from the arrest. (Dkt. 27-2 at ~ 7;
Dkt. 30-1 at ~ 7; see Dkt. 27-10 at 7 (stating that he was
not seeking damages for physical injuries)); see also Regels
v. Giardono, 113 F. Supp. 3d 574, 599 (ND.N.Y. 2015) ("[A]
de minimis use of force will rarely suffice to state a
constitutional claim. Moreover, de minimis injury can serve
as conclusive evidence that de minimis force was used."
(quotation marks and citation omitted); O'Leary v. City of
New York, 938 F. Supp. 2d 410,415-16 (E.D.N.Y. 20l3)
("[The plaintiff urges that he was subjected to assault,
battery, and excessive force. However, [the p]laintiff's sole
allegation of force is that he was searched and handcuffed.
[The p]laintiff does not allege that any other force was used
against him, nor does he allege that he was injured. It is
well established that a search and handcuffing of an
arrestee, without more, is insufficient to support a federal
claim for excessive force." (citations omitted)).
Therefore, summary judgment should be granted in
favor of Defendants on Plaintiffs fifth and sixth causes of
action. [Page 23 of 30]
E. The Individual Defendants are Entitled to
Qualified Immunity as to Plaintiff's Third Cause of Action
28

for the Failure to Intercede to Prevent an Unconstitutional


Act Under § 1983
"It is widely recognized that all law enforcement
officials have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other
law enforcement officers in their presence.?' Usavage v.
Port Auth. of NY & NJ., 932 F. Supp. 2d 575, 599 (S.D.N.Y.
2013) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d
Cir. 1994)). "[A]n officer is entitled to qualified immunity
unless his failure to intercede was under 'circumstances
making it objectively unreasonable for him to believe that
his fellow officers' conduct did not violate [the plaintiffs]
rights. '" Holland v. City of New York, 197 F. Supp. 3d
529,549 (S.D.N.Y. 2016) (quoting Ricciuti v. N Y.C. Transit
Auth., 124 F.3d 123, 129 (2d Cir. 1997)). "Moreover.jhe
failure to intervene claim is contingent upon the disposition
of the primary claims underlying the failure to intervene
claim." Matthews v. City of New York, 889 F. Supp. 2d
418,443-44 (E.D.N.Y. 2012). Thus, "[i]f the Court
determines that the officer's conduct did not violate a
constitutional right, ... the analysis ends." Feinberg v. City
of New York, No. 99CV12127(RC), 2004 WL 1824373, at *4
(S.D.N.Y. Aug. 13,2004) (citing Saucier, 533 U.S. at 201).
Here, Plaintiff s failure to intervene claim is
grounded upon his false arrest and assault and battery
causes of action, as well as the alleged use of force that
occurred during his arrest. (Dkt. 1 at ~ 55). However,
Plaintiff s failure to intervene claim fails because the Court
has determined that Plaintiffs arrest and prosecution were
supported by probable cause, there is no record proof
indicating that the Individual Defendants were present
during 'the arrest-which was affected by law enforcement
authorities in a neighboring [Page 24 of 30] jurisdiction-and
the force used in affecting the arrest was not excessive. See
Williams v. City of New York, No. 14-CV-7158 (JPO), 2016
WL 3194369, at *6-7 (S.D.N.Y. June 7, 2016) (holding that
where "there was at least arguable probable cause to arrest
[the plaintiff,] ... it cannot be said that [the d]efendants'
29

failure to intervene was objectively unreasonable" (internal


quotation marks and citations omitted»; Holland, 197 F.
Supp. 3d at 549 (holding that where one defendant was
entitled to qualified immunity for the alleged constitutional
violation, this conclusion applied "equally" to the other
defendants under a failure to intercede claim "because they
too would not reasonably have known that [the plaintiff’s
constitutional rights were being violated"); Coleman v. City
of New York, No. 07 Civ. 1051 (CM), 2010 WL 571986, at *5
(S.D.N.Y. Feb. 2, 2010) (finding that where the force used
resulted in only a "transitory and de minimis" injury, "there
was no constitutional violation" and any claims against
other officer defendants who "applied no force at all," and
"could only be liable for failure to intervene when
confronted with an unlawful application of force," were
dismissed); Lucky v. City of New York, No. 03
Civ.1983(DLC), 2004 WL 2088557, at *7 (S.D.N.Y. Sept. 20,
2004) (finding that the claims for failure to intervene to
prevent an arrest and to prevent excessive force failed
where the arrest and prosecution was supported by
probable cause, and the defendants were not present at the
time of the alleged use of force), aff'd, 140 F. App'x 301 (2d
Cir. 2005); Feinberg, 2004 WL 1824373, at *4 ("[S]ince [the
d]efendants had probable cause to arrest and charge the
[p]laintiff, [the d]efendants' motion for summary judgment
on this claim [for failure to intercede] is granted.") [Page 25
of 30]
Therefore, the Court also concludes that summary
judgment should be granted in favor of Defendants on the
third cause of action on qualified immunity grounds.
F. Probable Cause Mandates Summary Judgment in
Favor of Defendants on Plaintiff's Seventh and Eighth
Causes of Action for Common Law Malicious Prosecution
and False Arrest
Initially, the Court notes that "[t]he doctrine of
qualified immunity is generally understood to only protect
government officials from federal, not state, causes of
action." Alhovsky v. Ryan, 658 F. Supp. 2d 526,535
30

(S.D.N.Y. 2009) (citing Jenkins v. City of New York, 478


FJd 76, 86 (2d Cir. 2007)), aff'd sub nom. Alhovsky v. Paul,
406 F. App'x 535 (2d Cir. 2011). Although "a similar
doctrine exists under New York common-law," Jenkins, 478
FJd at 86; see Tsesarskaya v. City.of New York, 843 F.
Supp. 2d 446,462 n.12 (S.D.N.Y. 2012) ("'Good faith
immunity' under New York law is similar to qualified
immunity under federal law ." (quoting Jenkins, 478 F.3d
at 86)), Defendants have failed to explicitly raise this
argument in their motion papers. However, Defendants
have correctly argued that the presence of probable cause is
an absolute defense to claims for malicious prosecution and
false arrest. (See Dkt. 27-23 at 14, 19-20). Under New York
law, "[tjheabsence of probable cause is an essential element
of a claim for malicious prosecution." McClellan v. Smith,
439 FJd 137, 145 (2d Cir. 2006); see Drummond v. Castro,
522 F. Supp. 2d 667,677 (S.D.N.Y. 2007) ("[T]he presence of
probable cause is a complete defense to an action for
malicious prosecution under § 1983 or state law.").
Although the "[l]ack of probable cause is not an essential
element" to establishing false arrest, Williams v. City of
New York, No. 14-cv-5123 (NRB), 2015 WL 4461716, at *4
(S.D.N.Y. July 21, 2015) (citations omitted), "[tjhe existence
of probable cause to arrest [Page 26 of 30] constitutes
justification and is a complete defense to an action for false
arrest. ... " Weyant v, Okst, 101 F.3d 845, 852 (2d Cir. 1996)
(quotation marks and citations omitted); see Jenkins, 478
F.3d at 84 ("The existence of probable cause to arrest
constitutes justification and is a complete defense to an
action for false arrest, whether that action is brought under
state law or under § 1983." (quotation marks and citation
omitted)).
Accordingly, because the Court has determined that
the Individual Defendants had probable cause based upon
the then-existing aggravated harassment in the second
degree statute, summary judgment is granted in favor of
Defendants on Plaintiff's seventh and eighth causes of
31

action for common law malicious prosecution and false


arrest.
G. Summary Judgment is Warranted in Favor of
Defendants on Plaintiff's Common-Law Claims for Assault
and Battery
Plaintiff provides little factual support for his assault
and battery causes of action. Plaintiffs responsive
argument to Defendants' motion is simply that because
there are questions of fact relating to the lawfulness of the
arrest, there must also be questions of fact as to the assault
and battery charges. (See Dkt. 30 at 16).
Under New York law, '" [i]f an arrest is determined
to be unlawful, any use of force against a plaintiff may
constitute an assault and battery, regardless of whether the
force would be deemed reasonable if applied during a lawful
arrest. '" 5 Borough Pawn, LLe. v. Marti, 753 F. Supp, 2d
186,201 (S.D.N.Y. 2010) (quoting Sulkowska v. City of New
York, 129 F. Supp. 2d 274, 294 (S.D.N.Y. 2001)). "An arrest
is lawful if made pursuant to a warrant or based upon
probable cause." Stone, 2014 WL 3110002, at *6. "A lawful
arrest is not an assault or battery under New York law,
provided the force used is reasonable." [Page 27 of 30]
Figueroa v. Mazza, 825 F.3d 89~ 105 n.l3 (2d Cir. 2016).
"As against law enforcement personnel, assault and battery
claims under New York law parallel the Fourth
Amendment standard governing the use of force incident to
a lawful arrest." Tianshu Li v. United States, No. 05 Civ.
6237 (NRB), 2009 WL 3321014, at *1 n.2 (S.D.N.Y. Oct.
8,2009) (citing Posr v. Doherty, 944 F.2d 91, 94-95 (2d Cir.
1991)). "[Ejxcept for § 1983's requirement that the tort be
committed under color of state law, the elements for a claim
of assault and battery against law enforcement officers
under New York law and a claim of excessive force under §
1983 are the same." Cabral v. City of New York, No. 12 Civ.
4659 (LGS), 2014 WL 4636433, at *10 (S.D.N.Y. Sept.
17,2014) (quotation marks and citation omitted), aff'd, 662
F. App'x 11 (2d Cir. 2016).
32

First, although Plaintiff alleges that the Individual


Defendants ordered their "subordinates" to arrest Plaintiff
(Dkt. 1 at " 96-99), Plaintiff testified that law enforcement
authorities in, a neighboring jurisdiction arrested him (see
Dkt. 27-10 at 24- 25), and there is no evidence that Captain
Leo and Detective Lakso were even present during the
arrest. See, e.g., Cruz v. City 0/ New York, 232 F. Supp. 3d
438, 455-56 (S.D.N. Y. 2017) (finding that the defendant
was not personally involved in the arrest where the
plaintiff had already been handcuffed and placed on the
ground before the officer arrived, even though the officer
then "transported [the plaintiff] to the precinct and signed
the Criminal Complaint against [the plaintiff]"); Crews v.
County a/Nassau, 996 F. Supp. 2d 186, 213 (E.D.N.Y. 2014)
(granting summary judgment in favor of some of the
defendants on the plaintiffs assault and battery claims
where "[tjhere is simply no evidence that any other
defendant actually participated in [the] plaintiffs arrest"
(footnote omitted)); - 27 - Case 1:15-cv-00355-EAW-LGF
Document 34 Filed 02/27/18 Page 28 of 30 De Ratafia v.
County of Columbia, No. 1:13-CV-174 (NAMJRFT), 2013
WL 5423871, at *9 (N.D.N.Y. Sept. 26, 2013) ("In the
absence of factual allegations establishing that defendant
Harrison was personally involved in the alleged state law
torts of assau1t[ and] battery, ... these claims ... also fail to
state a cause of action under New York law.").
Second, Plaintiff's argument that there is a question
of fact as to whether the arrest was lawful is undermined
by the fact that Plaintiff's arrest by law enforcement
authorities was supported by probable cause for the
charged conduct. See Figueroa, 825 F.3d at 105 n.l3; see
also Virginia v. Moore, 553 U.S. 164, 177 (2008) (''[W]e have
equated a lawful arrest with an arrest based on probable
cause."); United States v. Diaz, 122 F. Supp. 3d 165, 171
(S.D.N.Y. 2015) ("For purposes of the Fourth Amendment, a
lawful arrest requires probable cause."), aff'd, 854 F.3d 197
(2d Cir. 2017).
33

Accordingly, because there is no evidence that the


Individual Defendants effectuated Plaintiff's arrest, and
since that arrest was supported by probable cause, the fact
that Plaintiff was arrested fails to raise an issue of material
fact in support of his common law assault and battery
claims. Furthermore, as noted above, Plaintiff has not
alleged any physical injury from his arrest, and simply
indicated that he experienced temporary discomfort from
the application of handcuffs. (See Dkt. 27-2 at ~ 7; Dkt. 30-
1 at ~ 7; see Dkt. 27-10 at 7, 29). As noted above in relation
to Plaintiff's fifth and sixth causes of action, the use of this
de minimis force to affect a lawful arrest was reasonable.
See Ladoucier v. City 0/ New York, No. 10 CIV. 05089
(RJH), 2011 WL 2206735, at *7 (S.D.N.Y. June 6,2011)
(dismissing the plaintiff's assault and battery claims
because there was no indication that the use of handcuffs
amounted to excessive force during his lawful [Page 29 of
30] arrest); Bourne v. County of Nassau, No. CV 05-6067
(ARL), 2009 WL 152658, at *8 (E.D.N.Y. Jan. 20, 2009)
(dismissing the plaintiffs assault claim where she failed to
provide any evidence of excessive force arising from her
lawful arrest); see also Cunningham v. United States, 472
F. Supp. 2d 366,381 (E.D.N.Y. 2007) ("[W]here there has
been a lawful arrest, intentional contact with the arrested
person does not constitute assault and battery, provided
such force is reasonable."), opinion corrected (Feb. 2, 2007).
Therefore, summary judgment is granted in favor of
Defendants on Plaintiffs ninth and tenth causes of action.
H. Plaintiff's Remaining Causes of Action Against
the City Must be Dismissed
Finally, it is well established that "there can be no
imposition of vicarious liability in the absence of underlying
liability." Shapiro v. Kronfeld, No. 00 Civ.6286(R\VS), 2004
WL 2698889, at *24 (S.D.N.Y. Nov. 24, 2004). Plaintiff
grounds all of his assertions of liability against the City
upon the principle of respondeat superior. (Dkt. 1 at 11-13).
Accordingly, because each of the claims asserted against
the Individual Defendants have been dismissed as a matter
34

of law, the causes of action asserted against the City are


also dismissed. See Fiedler v. Incandela, 222 F. Supp. 3d
141, 169 (E.D.N.Y. 2016) ("Having concluded that the
[i]ndividual [defendants are entitled to judgment as a
matter of law with respect to [the plaintiff's claims arising
under New York law, the [c]ounty [d]efendants are also
entitled to judgment as a matter oflaw with respect to [the
pjlaintiff's claims for vicarious liability."). [Page 30 of 30]
CONCLUSION
For the forgoing reasons, Defendants' motion for
summary judgment (Dkt, 27) is granted, and Plaintiff s
complaint (Dkt. 1) is dismissed with prejudice.
SO ORDERED.
/s/ Elizabeth A. Wolford
ELIZABETH A. WOLFORD
United States District Judge

DATED: February 27, 2018


Buffalo, New York
35

Case 1:15-cv-00355-EAW-LGF Document 35 Filed 02/28/18


Page 1 of 1

Judgment in a Civil Case

United States District Court WESTERN DISTRICT OF


NEW YORK

SCOTT A. BOYLER JUDGMENT IN A CIVIL


CASE CASE

NUMBER: 15-CV-355-W

v.

CITY OF LACKAWANNA, ET AL

☐ Jury Verdict. This action came before the Court for a


trial by jury. The issues have been tried and the jury has
rendered its verdict.

☒ Decision by Court. This action came to trial or hearing


before the Court. The issues have been tried or heard and a
decision has been rendered.

IT IS ORDERED AND ADJUDGED: that the Defendants’


motion for summary judgment (Dkt. 27) is granted, and
Plaintiff’s complaint (Dkt. 1) is dismissed with prejudice.

Date: February 27, 2018 MARY C. LOEWENGUTH


CLERK OF COURT

By: s/K.McMillan
Deputy Clerk
36

18-839
Boyler v. City of Lackawanna

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 13th day of March, two thousand
nineteen.

PRESENT:

ROBERT A. KATZMANN,
Chief Judge,
DEBRA ANN LIVINGSTON,
CHRISTOPHER F. DRONEY,
Circuit Judges.
37

______________________________________
SCOTT A. BOYLER,

Plaintiff-Appellant,

v. No. 18-839

CITY OF LACKAWANNA, JOSEPH LEO,


individually and in his official capacity as Captain of
the City of Lackawanna Police, BRIAN LAKSO,
individually and in his official capacity as a City of
Lackawanna Police Detective,

Defendants-Appellees.

____________________________________________

For Plaintiff-Appellant: JAMES OSTROWSKI, Buffalo,


NY.

For Defendants-Appellees: JULIE P. APTER,


Goldberg Segalla LLP,
Buffalo, NY.

Appeal from a judgment of the United States District


Court for the Western District of New York (Wolford, J.).

UPON DUE CONSIDERATION, IT IS HEREBY


ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED.

Plaintiff-appellant Scott Boyler appeals the district


court’s grant of summary judgment to defendants-appellees
City of Lackawanna, Captain Joseph Leo, and Detective
Brian Lakso on his claims under 28 U.S.C. § 1983 and New
York state law for violation of his free speech rights,
38

malicious prosecution, and false arrest. 6 We assume


5F

familiarity with the underlying facts, the procedural


history, and the issues presented for review. Nevertheless,
some background is required to explain our decision to
affirm.

Boyler has had a long history with the City of


Lackawanna Police Department. He was arrested at least
twice by its officers. Captain Leo was involved in both
instances. Boyler claims that, during one of these arrests,
Captain Leo illegally confiscated some of his personal
belongings. In response to these interactions, Boyler
created both a website and a related Facebook page. Boyler
posted photos and derogatory descriptions of Captain Leo
on these sites, as well as complaints about corruption in the
police department and at City Hall.
An individual from outside the police department
informed Captain Leo—who did not use the Internet—that
Boyler was posting statements about him and the
Lackawanna Police on Facebook. Captain Leo approached
Detective Lakso with a screenshot of Boyler’s website,
expressing concern that the site was targeting him and
could lead someone to threaten his safety. Detective Lakso
prepared a police report and an Information/Complaint
based on the information that Captain Leo provided and
additional information Detective Lakso found online. The
complaint was submitted to a Lackawanna City Court
judge, and the judge issued an arrest warrant for Boyler on
January 3, 2014 on the charge of second-degree aggravated

6
Several of the claims Boyler pressed below have dropped out of the
case. Boyler makes no mention in his briefs of his § 1983 claim for
failure to prevent unconstitutional acts, or of his causes of action for
assault and battery. He has therefore waived these claims. See Friends
of Animals v. Clay, 811 F.3d 94, 99 n.8 (2d Cir. 2016). Boyler likewise
does not challenge the district court’s conclusion that the Eleventh
Amendment bars any damages claims against the individual
defendants in their official capacities.
39

harassment. On May 13, 2014, the New York Court of


Appeals held that the provision under which Boyler had
been charged was unconstitutionally vague and overbroad.
See People v. Golb, 15 N.E.3d 805, 814 (N.Y. 2014).
Prosecutors therefore dismissed Boyler’s case. This federal
action followed.
We review de novo a district court’s grant of summary
judgment, viewing the facts in the light most favorable to
the nonmoving party. See Irby v. N.Y.C. Transit Auth.,
262 F.3d 412, 413 (2d Cir. 2001) (per curiam). We “may
affirm on any basis for which there is sufficient support in
the record, including grounds not relied on by the district
court.” Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d
395, 413 (2d Cir. 2014). 7 6F

Boyler first asserts that the harassment charge against


him violated his speech rights under the First and
Fourteenth Amendments. Even assuming his rights were
violated, however, we find that Boyler has failed to show
sufficient injury to bring his § 1983 claim. “To state a claim
under Section 1983, a plaintiff must allege facts indicating
that some official action has caused the plaintiff to be
deprived of his or her constitutional rights—in other words,
there is an injury requirement to state the claim.” Colombo
v. O’Connell, 310 F.3d 115, 117 (2d Cir. 2002) (per curiam).
To avoid summary judgment, Boyler “must come forward
with evidence showing either that (1) defendants silenced
him or (2) defendants’ actions had some actual, non-
speculative chilling effect on his speech.” Williams v. Town
of Greenburgh, 535 F.3d 71, 78 (2d Cir. 2008).
There is no such evidence in this case. “It is abundantly
clear from the record that [Boyler’s] readiness to hold forth
on his perceived mistreatment at the hands of [the
defendants] was unimpaired by their allegedly punitive

7
Unless otherwise indicated, case quotations omit all internal
quotation marks, alterations,
footnotes, and citations.
40

conduct.” Id. Boyler testified in his deposition, over


eighteen months after his arrest, that he continued to post
about the City and Captain Leo. The record shows that he
posted numerous times throughout 2015 about Captain
Leo, the criminal harassment case filed against him, the
instant civil case, and the supposed corruption in the City’s
government and police department. Boyler continued to use
the same obscene language to describe Captain Leo and the
police force that he had used before his arrest. Indeed,
when asked during his deposition how his speech rights
were violated, Boyler failed to point to any chilling effect or
other injury. As Boyler has essentially denied that his
speech was silenced or chilled, the defendants are entitled
to summary judgment on his free speech claim. See
Colombo, 310 F.3d at 117.
Boyler also challenges the district court’s grant of
summary judgment to Captain Leo and Detective Lakso on
his false arrest and malicious prosecution claims. The
district court found that Boyler’s claims fail because the
defendants had probable cause to charge him. Probable
cause is a complete defense to false arrest and malicious
prosecution claims under both § 1983 and New York law.
See Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir.
2016) (malicious prosecution); Jenkins v. City of New York,
478 F.3d 76, 84 (2d Cir. 2007) (false arrest). A police officer
“has probable cause to arrest when he or she has knowledge
or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be
arrested has committed or is committing a crime.” Garcia v.
Does, 779 F.3d 84, 92 (2d Cir. 2015). The information
contained in and attached to the criminal complaint—
Boyler’s constant slurs against Captain Leo, his
acknowledgement that Captain Leo might feel harassed,
and his statement that Captain Leo “aint [sic] seen nothing
yet,” Appellees’ App. 134—provides probable cause for
arrest under the harassment statute despite any non-
injurious speech violation. See Williams, 535 F.3d at 78-79.
41

Boyler suggests three reasons why probable cause was


lacking, but none are availing. First, he claims that his
communication was not transmitted or delivered to Captain
Leo as required by the harassment statute, see N.Y. Penal
Law § 240.30(1)(a) (2012), because he posted the comments
on a website and a third party informed Captain Leo about
them. The fact that Captain Leo learned of the
communication through another is irrelevant. After all, a
defendant would clearly be “transmitting” a “written
communication,” id., if she gave a threatening letter to an
intermediary to deliver to the victim. Nor does the fact that
Boyler posted his comments on a public website take them
outside the statute’s ambit. This Court has already
affirmed a district court’s decision that “the posting of a
website” counted as “written communications” and that an
arrest warrant thus was “supported by probable cause to
believe [the defendant] violated . . . § 240.30(1)(a).”
Pacherille v. Muehl, 619 F. App’x 18, 19 (2d Cir. 2015)
(summary order). Boyler points out that Pacherille was a
summary order, but it nonetheless buttresses the common-
sense view that one may “communicate with a person”
indirectly by “transmitting . . . [a] written communication”
through a public medium. § 240.30(1)(a).
Second, Boyler argues that there was no evidence that
he had the specific intent required by the harassment
statute. However, “[a]n assessment of intent frequently
depends on circumstantial evidence,” and “because the
practical restraints on police in the field are greater with
respect to ascertaining intent . . . , the latitude accorded to
officers considering the probable cause issue in the context
of mens rea crimes must be correspondingly great.” Zalaski
v. City of Hartford, 723 F.3d 382, 393 (2d Cir. 2013). The
posts attached to the criminal complaint included photos
and videos of Captain Leo with disparaging comments
about his appearance and character, as well as a post
taunting Captain Leo for supposedly complaining that
Boyler was harassing him through the site. The defendants
certainly had enough evidence to infer that Boyler was
42

writing with the intent (at least in part) to annoy Captain


Leo.
Third, Boyler asserts that cases had already limited the
harassment statute’s reach before his arrest such that it
did not apply to political or Internet speech. The cases he
cites for this argument all dismissed prosecutions either
based on the specifics of the defendants’ statements or
on grounds unrelated to the content of their speech. See
People v. Mangano, 796 N.E.2d 470, 471 (N.Y. 2003) (mem.
order); People v. Dupont, 107 A.D.2d 247, 252 (N.Y. App.
Div. 1st Dep’t 1985); People v. Pierre-Louis, 927 N.Y.S.2d
592, 597 (N.Y. Dist. Ct. 2011); People v. Yablov, 706
N.Y.S.2d 591, 595 (N.Y. Crim. Ct. 2000). Neither the
federal nor the state courts had adopted a general
narrowing construction of the statute at the time of his
arrest. Additionally, since Boyler’s arrest was pursuant to a
warrant, we “must accord considerable deference to the
probable cause determination of the issuing magistrate.”
Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007). As we
find that the defendants had probable cause to arrest
Boyler, we need not determine whether the
individual defendants are also entitled to qualified
immunity.
Finally, Boyler seeks damages from the City on his
common law claims as a matter of respondeat superior
liability. As Boyler has waived his assault and battery
claims, and as the individual defendants are entitled to
summary judgment on his state malicious prosecution and
false arrest charges, there are no underlying violations for
which to hold the City vicariously liable. Boyler asserts that
the City should remain liable under respondeat superior
even if the individual defendants are not. Precedent bars
this argument. See Kass v. City of New York, 864 F.3d 200
, 213-14 (2d Cir.), cert. denied, 138 S. Ct. 487
(2017).
We have considered all Boyler’s contentions on appeal
and have found in them no basis for reversal. For the
43

reasons stated herein, the judgment of the district court is


AFFIRMED.

FOR THE COURT:


Catherine O’Hagan Wolfe, Clerk

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