Boyler - Cert Petition
Boyler - Cert Petition
Boyler - Cert Petition
_________
_______________________________________________________
In The
Supreme Court of the United States
_______________________________________________________
Scott A. Boyler,
Plaintiff - Appellant,
v.
Defendants - Appellees.
QUESTIONS PRESENTED i
CITATIONS iv
JURISDICTION 1
PROVISIONS
ARGUMENT 4
CONCLUSION 7
APPENDIX 8
IV. CITATIONS
CONSTITUTIONS
STATUTES
Penal Law §240.30(1)(a) 1
CASES
V. JURISDICTION
VIII. ARGUMENT
CONCLUSION
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
APPENDIX
_______________________________________________________
SCOTT A. BOYLER,
v.
Defendants.
INTRODUCTION
The following facts are taken from Defendants' Rule 56.1 Statement of
1
(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
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
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:
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
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
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
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
NUMBER: 15-CV-355-W
v.
CITY OF LACKAWANNA, ET AL
By: s/K.McMillan
Deputy Clerk
36
18-839
Boyler v. City of Lackawanna
SUMMARY ORDER
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DEBRA ANN LIVINGSTON,
CHRISTOPHER F. DRONEY,
Circuit Judges.
37
______________________________________
SCOTT A. BOYLER,
Plaintiff-Appellant,
v. No. 18-839
Defendants-Appellees.
____________________________________________
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
7
Unless otherwise indicated, case quotations omit all internal
quotation marks, alterations,
footnotes, and citations.
40
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