13-1262-cv
Auricchio v. Town of Dewitt, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 29th day of January, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 DENNY CHIN,
8 SUSAN L. CARNEY
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 NICHOLAS M. AURICCHIO,
13 Plaintiff-Appellant,
14
15 -v.- 13-1262-cv
16
17 TOWN OF DEWITT; TOWN OF DEWITT POLICE
18 DEPARTMENT; EUGENE J. CONWAY,
19 Individually and in his official
20 capacity as Chief of Police for the
21 Town of Dewitt; BRENTON WHITE,
22 Individually and in his official
23 capacity as Police Officer for the
24 Town of Dewitt Police Department;
25 DAMON GAGNIER, Individually and in his
26 official capacity as Police Officer
27 for the Town of Dewitt Police
28 Department;
29 Defendants-Appellees;
1
1
2 JOHN DOE, Individually and in his
3 capacity as a Police Officer for the
4 Town of Dewitt Police Department;
5 Defendant.
6 - - - - - - - - - - - - - - - - - - - -X
7
8 FOR APPELLANT: Michael J. Auricchio, Syracuse,
9 New York.
10
11 FOR APPELLEES: Frank W. Miller, The Law Firm of
12 Frank W. Miller, East Syracuse,
13 New York.
14
15 Appeal from a judgment of the United States District
16 Court for the Northern District of New York (Suddaby, J.).
17
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
19 AND DECREED that the judgment of the district court be
20 AFFIRMED.
21
22 Nicholas Auricchio appeals from a judgment of the
23 United States District Court for the Northern District of
24 New York (Suddaby, J.), granting summary judgment in favor
25 of defendants-appellees. We assume the parties’ familiarity
26 with the underlying facts, the procedural history, and the
27 issues presented for review.
28
29 We review a grant of summary judgment de novo. See
30 Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.
31 2013). “Summary judgment is appropriate if there is no
32 genuine dispute as to any material fact and the moving party
33 is entitled to judgment as a matter of law.” Id.; accord
34 Fed. R. Civ. P. 56(a). In determining whether there are
35 genuine disputes of material fact, the court is “‘required
36 to resolve all ambiguities and draw all permissible factual
37 inferences in favor of the party against whom summary
38 judgment is sought.’” Terry v. Ashcroft, 336 F.3d 128, 137
39 (2d Cir. 2003) (quoting Stern v. Trs. of Columbia Univ. in
40 City of N.Y., 131 F.3d 305, 312 (2d Cir. 1997)). There is
41 no genuine dispute for trial “[w]here the record taken as a
42 whole could not lead a rational trier of fact to find for
43 the non-moving party.” Matsushita Elec. Indus. Co. v.
44 Zenith Radio Corp., 475 U.S. 574, 587 (1986).
45
2
1 This suit arises out of Auricchio’s arrest on East
2 Genessee Street, in the Town of Dewitt, for violating the
3 Town’s Noise Control Law by preaching. See Town of Dewitt
4 Code, Ch. 126 (the “noise ordinance”). We affirm for
5 substantially the same reasons set forth by the district
6 court in its well-reasoned decision dated March 8, 2013.
7 See Auricchio v. Town of DeWitt, 2013 U.S. Dist. LEXIS 31679
8 (N.D.N.Y. Mar. 8, 2013).
9
10 In particular, we have upheld the constitutionality of
11 similarly-worded statutes against facial challenges under
12 the First Amendment. See, e.g., Costello v. City of
13 Burlington, 329 F. App’x 330, 331 (2d Cir. 2009); Deegan v.
14 City of Ithaca, 444 F.3d 135, 140 (2d Cir. 2006).
15 Auricchio’s as-applied challenge is that the noise
16 ordinance’s exceptions render the ordinance impermissibly
17 content-based. We disagree. “[E]nforcement of the noise
18 control ordinance did not burden substantially more speech
19 than necessary to achieve [Dewitt’s] goal of curbing
20 excessive noise[,]” because the undisputed evidence
21 demonstrates that Auricchio’s “noise impinged on the use of
22 the neighborhood by others with equal claim[.]” Costello v.
23 City of Burlington, 632 F.3d 41, 46 (2d Cir. 2011).
24 Finally, we agree with the district court that the defendant
25 police officers had probable cause to arrest Auricchio; in
26 any event, they are entitled to qualified immunity on all of
27 Auricchio’s claims because, “[c]onsidered against the
28 backdrop of our prior holdings, it is clear [that] ‘officers
29 of reasonable competence could disagree on the legality of
30 [Auricchio’s] actions,’ especially in light of the multitude
31 of uses [East Genesee] Street must accommodate.” Id. at 52
32 (Pooler, J., concurring) (citation omitted).
33
34 For the foregoing reasons, and finding no merit in
35 Auricchio’s other arguments, we hereby AFFIRM the judgment
36 of the district court.
37
38 FOR THE COURT:
39 CATHERINE O’HAGAN WOLFE, CLERK
40
3