Police win qualified immunity after arresting motorist for vulgarity

It all started when plaintiff was pulled over for speeding. He plead guilty by mail. When he sent in his payment form, he wrote an obscenity on the form before mailing it in to the Town Court in Sullivan County. The police arrested him for aggravated harassment, which prohibits threats. He sued the police. The district court granted the police qualified immunity, and the Court of Appeals affirms.


The case is Barboza v. D'Agata, a summary order decided on January 18. I argued the appeal. Losing is a major downer, but I will try to be be neutral here, Plaintiff wrote "Fuck your shitty town bitches" on the form. When the Town judge found out about it, he gave it to the assistant district attorney, who decided the language violated the aggravated harassment statute and told Police Officer D'Agata to arrest plaintiff.


Plaintiff sued the police and the assistant district attorney. On the summary judgment motion, the district court ruled there was no real threat here and the arrest violated the First Amendment. The trial court further held the assistant district attorney was not entitled to prosecutorial immunity. But the district court entered judgment for the officers on qualified immunity grounds. As civil rights lawyers know, qualified immunity allows police officers to avoid litigation if they did not violate a clearly-established constitutional right. This means that, even if 20/20 hindsight tells us the plaintiff's rights were in fact violated, the officers can win if the case law was not clear at the time that his rights were violated. Here, while the district court said the arrest violated clearly established law, it granted them qualified immunity, ruling they acted in an objectively reasonably manner because they relied on the district attorney's directive and the Town Justice's implied endorsement of the arrest in not dismissing the charge when plaintiff appeared before him.



The Court of Appeals (Raggi, Chin and Lohier) affirms as to police officer liability. The Court disagreed with the district court's view that the law was clearly-established. While a New York Court of Appeals ruling, People v. Mangano (2003) said the defendant did not violate the aggravated harassment law after repeatedly calling a parking violations bureau with threats and vulgarities, Mangano is not on "all fours" with this case because Mangano only distinguished a prior State Court of Appeals ruling that said liability may arise from the defendant's "harassing conduct, not from any expression entitled to constitutional protection." In Mangano the defendant got away with his invective because he called a complaint hotline at the parking violations bureau.


As the Second Circuit sees it, there is no case close enough to Barboza's to place the police on notice that they were violating his First Amendment rights, even if Supreme Court authority says the "true threats" threshold is quite high in arresting someone for obnoxious behavior. Instead, the Second Circuit holds, "at the time at issue, New York's Court of Appeals had recognized both permissible and impermissible applications of the [aggravated harassment] statute. Thus, existing precedent did not yet place the question of Section 240.30(1)'s constitutional application to the circumstances of this case beyond debate." In addition, the Second Circuit says, "an assistant district attorney, after discussing the matter with the district attorney, advised the officers that Barboza's communication was threatening and warranted a Section 240.30(1) charge (and, indeed, directed its filing). That conclusion is reinforced by the actions of two judges, one of whom, after reviewing the charging information, advised Barboza that he was about to be arrested, and the second of whom, upon similar review, arraigned and detained Barboza on the charge."