Vives v. City of New York , 405 F.3d 115 ( 2004 )

Judge CARDAMONE filed a separate opinion, dissenting in part and concurring in part.

JOSÉ A. CABRANES, Circuit Judge.

Plaintiff Carlos Vives brought this action against defendants,¹ seeking declaratory and injunctive relief and monetary damages, based on his contention that his First and Fourth Amendment rights were violated when he was arrested for aggravated harassment pursuant to New York Penal Law § 240.30(1)² (“section 240.30(1)”) in connection with his mailing non-threatening religious and political materials to Jane Hoffman, then a candidate for New York State Lieutenant Governor, and other “people of the Jewish faith.” Vives, 305 F.Supp.2d at 294. Vives stated that he sent these materials “with the intent to alarm [the recipients] about current world events that have been prophesied in the Bible.” Id.

Noting that section 240.30(1) had “never before been declared unconstitutional on its face,” the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge) nonetheless concluded “that a declaration of [the section’s] unconstitutionality was inevitable, and [that,] under these circumstances, the defendants may be said to have had fair notice of [section 240.30(l)’s] unconstitutionality” prior to arresting Vives. Id. at 303. The District Court consequently denied Detectives Li and Lu’s motion for summary judgment and found that, if defendants wanted to avoid personal liability, they would have to “prove at trial that their actions were reasonable under the circumstances.” Id.

Because we hold that defendants did not have fair notice of the District Court’s “inevitable” declaration of section 240.30(l)’s unconstitutionality, we reverse the District Court’s denial of defendants’ motion for summary judgment with respect to the issue of defendants’ personal liability.

DISCUSSION

We review a district court’s denial of summary judgment de novo. Maxwell v. City of New York, 102 F.3d 664, 667 (2d Cir.1996).

We have held that

absent contrary direction, state officials ... are entitled to rely on a presumptively valid state statute ... until and unless [the statute is] declared unconstitutional .... The enactment of a law forecloses speculation by enforcement officers concerning [the law’s] constitutionality — with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.

Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 102-03 (2d Cir.2003) (citations, quotation marks, and alterations omitted). Despite this directive, the District Court did not apply the standard articulated in Blumenthal to defendants’ case. Instead, the District Court relied on certain language from In re State Police Litigation, 88 F.3d 111 (2d Cir.1996)—a case which did not involve state officials acting under the color of a properly-enacted statute — and decided that Detectives Li and Lu were not entitled to rely on the presumptive constitutionality of section 240.30(1) “ ‘if, in light of pre-existing law, the unlawfulness of [their] action[s] was apparent.’” Vives, 305 F.Supp.2d at 297 (quoting In re State Police Litig., 88 F.3d at 123).

The District Court then found that preexisting law “foreshadowed” the unconstitutionality of section 240.30(1), id. at 301, with such “obvious clarity” that “a reasonable officer [would have known] that [arresting plaintiff under section 240.30(1) for his mailings] was unlawful,” id. at 297 (internal citations and quotation marks omitted). In so finding, the District Court relied principally on four cases, see id. at 300-01, none of which stands for the proposition that section 240.30(1) is facially unconstitutional.

In the first case relied on by the District Court, People v. Dupont, 107 A.D.2d 247, 486 N.Y.S.2d 169 (1st Dep’t 1985), the Appellate Division held that section 240.30(1) was unconstitutional only as applied to the facts before it.³ People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166 (1989), the second of the four, dealt with the constitutionality of an entirely different penal section.⁴ The third case, Schlagler v. Phillips, 985 F.Supp. 419 (S.D.N.Y.1997), was reversed on appeal, 166 F.3d 439 (2d Cir.1999).⁵ And in the fourth case, People v. Mangano, 100 N.Y.2d 569, 764 N.Y.S.2d 379, 796 N.E.2d 470 (2003), the judgment was entered on July 2, 2003, more than a year after Detectives Li and Lu arrested plaintiff on April 6, 2002.⁶ As such, none of these cases could possibly have served as fair notice to Detectives Li and Lu “that a declaration of [section 240.30(l)’s] unconstitutionality was inevitable.” Vives, 305 F.Supp.2d at 303.

Far from being “so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws,” Blumenthal, 346 F.3d at 103, several courts have specifically declined to find section 240.30(1) unconstitutional. See, e.g., People v. Diraimondo, 174 Misc.2d 937, 667 N.Y.S.2d 205, 207-08 (N.Y. Dist. Ct., Nassau Cty.1997) (finding “that the defendant ... failed to meet the heavy burden of proving [section 240.30(1) ] unconstitutional beyond a reasonable doubt”); People v. Miguez, 153 Misc.2d 442, 590 N.Y.S.2d 156, 157 (1st Dep’t 1992) (rejecting “defendant’s contention that her conducts which violated section 240.30(1),] qualifie[d] as constitutionally protected speech”); People v. Katz, 135 Misc.2d 857, 518 N.Y.S.2d 721, 723 (1st Dep’t 1987) (“Defendant’s ... argument that [section 240.30(1) ] is void for vagueness ... is ... unavailing.”). These cases, in conjunction with our ruling in Schlagler, see note 5 ante, lead us to conclude that the detectives’ reliance on the presumptive constitutionality of section 240.30(1) was appropriate.

On the basis of the foregoing, we hold that defendants did not have fair notice of section 240.30(l)’s purported unconstitutionality and that the District Court erred in denying Detectives Li and Lu qualified immunity on that ground. Because we hold that the District Court’s denial of qualified immunity to defendants was improper, we do not reach the question of whether New York Penal Law § 240.30(1) survives constitutional scrutiny, but save that question for another day. See Ehrlich v. Town of Glastonbury, 348 F.3d 48, 57 (2d Cir.2003) (recognizing that, consistent with Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), “we may [in certain circumstances] move directly to [the question of qualified immunity] and refrain from determining whether a constitutional right has been violated”); ⁷ see also Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”); Anobile v. Pelligrino, 303 F.3d 107, 123 (2d Cir.2001) (“Principles of judicial restraint caution us to avoid reaching constitutional questions when they are unnecessary to the disposition of a case.”).

CONCLUSION

The portion of the District Court’s judgment denying defendants qualified immunity is reversed, and the cause is remanded to the District Court with instructions to enter summary judgment in favor of defendants on the issue of defendants’ personal liability.

1 . Pursuant to 28 U.S.C. § 2403(b), the District Court notified the New York State Attorney General of this action and plaintiff's challenge to “the constitutionality of section 240.30(1) of the New York State Penal Law as it applies to nonthreatening materials protected by the First Amendment.’’ Vives v. City of New York, 02 Civ. 6646, Certification Order (S.D.N.Y. Mar. 21, 2003). Despite the Certification Order, the State of New York did not appear in the District Court to defend the constitutionality of section 240.30(1). See Vives v. City of New York, 305 F.Supp.2d 289, 293 n. 3 (S.D.N.Y.2003). We notified the Attorney General of this appeal, but the Attorney General, in a letter from Caitlin Hanni-gan, New York State Solicitor General, dated October 22, 2004, has again declined to appear and does not defend the constitutionality of section 240.30(1) to this Court.

2 . New York Penal Law § 240.30 provides in relevant part:

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

3 . See Dupont, 486 N.Y.S.2d at 177 ("Count 10 of the indictment was an overly broad effort to apply § 240.30[,].... [and] is unconstitutional as applied in this instance.''). "While [the Dupont Court] may have purported to declare [section 240.30] facially invalid, it is not entirely clear that it did so and in any event does not render invalid all prosecutions under the statute.” Schlagler v. Phillips, 166 F.3d 439, 443 (2d Cir.1999).

4 . Dietze involved N.Y. Penal Law § 240.25(2), which criminalized the use of "abusive or obscene language” "with the intent to harass, annoy or alarm another person.” Though section 240.25 is similar in form to section 240.30, the Court of Appeals’ conclusion that section 240.25(2) ran afoul of the First Amendment, Dietze, 75 N.Y.2d at 50 & n. 1, 550 N.Y.S.2d 595, 549 N.E.2d 1166, is not dispositive of § 240.30(l)’s constitutionality, which does not criminalize a particular class of words.

5 .In reversing the District Court's conclusion that section 240.30(1) had previously been declared unconstitutional, and thus that “prosecution [under it] was brought in bad faith,” we specifically stated that "there has been no conclusive determination that section 240.30(1) is unconstitutional” and declined to reach the question of the section’s constitutionality. Schlagler, 166 F.3d at 443.

6 . In Mangano, moreover, the New York Court of Appeals did not declare section 240.30(1) unconstitutional. After citing a prior case in which the Court had confirmed that section 240.30 was constitutional as applied to the facts therein, People v. Shack, 86 N.Y.2d 529, 634 N.Y.S.2d 660, 658 N.E.2d 706 (1995), the Court said that, on the facts in Mangano, "[w]e cannot agree with the People's argument that appellant's messages fall within any of the proscribable classes of speech or conduct,” Mangano, 100 N.Y.2d at 571, 764 N.Y.S.2d 379, 796 N.E.2d 470.

7 . Although the constitutionality of section 240.30(1) was not properly presented to us, Judge Cardamone takes issue with our decision not to address the penal provision's constitutionality. We do not reach the constitutional question because we are reluctant to pass on the issue in dicta and because the parties did not genuinely dispute the constitutionality of section 240.30(1) either in the District Court or on appeal. See Ehrlich, 348 F.3d at 56-60; Horne v. Coughlin, 191 F.3d 244, 246-50 (2d Cir.1999). Judge Carda-mone states that "the majority cannot reasonably declare that the parties did not address this issue,” post, at 137. Yet defendants concede in their opening brief that they "took no position in the District Court with respect to the constitutionality of P.L. § 240.30(1),” and that, though they "believe that the statute was and is constitutional,” instead of defending that position, they stress their view that "this Court need not resolve the question of the constitutionality of the statute on this appeal at this time.” Defendants' Br. at 42-43. The City, for its part, did not appear to defend the statute, and plaintiff confirms that "the City made no effort in the District Court to defend the statute,” noting that defendants’ "brief to this court does not address any of the considerable Supreme Court law pertinent to this point, relying instead only on a string cite to lower-court state cases they suggest establish the constitutionality of section 240.30(1).” Plaintiffs Br. at 23.