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1/20/2017
Federal Appeals Court Clears Cops In Prosecution Of Potty Mouth Motorist
Police face no penalty for violating First Amendment right of motorists to write naughty comments on a speeding ticket payment.

William Barboza
When then-22-year-old motorist William Barboza wrote a profane note on his payment for a speeding ticket nearly five years ago, little did he know his small act of defiance would end in his arrest. On Wednesday, the Second Circuit US Court of Appeals issued a summary order affirming a lower court decision (view ruling) that had cleared the cops of liability for arresting the man solely because he exercised his right to free speech.

Barboza, a Connecticut resident, had been stopped and ticketed while passing through the speed trap town of Liberty, New York on May 4, 2012. When it came time to pay the Town of Liberty Justice Court, Barboza crossed out the word "Liberty" on the notice and substituted "Tyranny." At the top, he added an expletive-laden sentence in all caps denigrating the town. Local officials intended to make an example of Barboza, so they forced him to appear in court in person, even though he had paid the fine. They then arrested him in the middle of the court proceedings.

Liberty police detectives Melvin Gorr and Steven D'Agata pressed the "aggravated harassment" charge against Babroza, claiming his words constituted a "threat" to the town clerk's office. This plan was suggested by Sullivan County assistant district attorney Robert Zangla. After reviewing the evidence, US District Judge Cathy Seibel decided in September 2015 that the police were just following orders and should not be held liable for this constitutional violation. The district attorney, on the other hand, was found culpable because, as a lawyer, he should have known better. On Wednesday, a three-judge panel of the Second Circuit agreed that the cops should not be liable.

"On the totality of these circumstances, we cannot conclude that no reasonable officer in the position of defendants D'Agata and Gorr could have believed that Barboza could be arrested for aggravated harassment without violating the First Amendment," Wednesday's summary order stated. "At the time at issue, New York's Court of Appeals had recognized both permissible and impermissible applications of the statute."

The detectives were cleared primarily because they were able to find both a prosecutor and a local judge willing to sign off on the charge. The appellate judges insisted that the legal issues involved were far more complicated.

"Accordingly, we conclude that the defendant police officers are entitled to qualified immunity, not because -- as the district court ruled -- the First Amendment right violated was clearly established but the officers' conduct was nevertheless objectively reasonable, but rather because a First Amendment right to engage in the charged conduct in the circumstances of this case was not yet clearly established so that no reasonable officer could have thought (even if mistakenly) that Barboza could lawfully be arrested for aggravated harassment," the summary order concluded.

Last February, Sullivan County paid Barboza $30,000 and his lawyers $45,000 to settle the complaint he filed against prosecutors in the case. A copy of the summary order is available in a 40k PDF file at the source link below.

Source: PDF File Barboza v. DAgata (US Court of Appeals, Second Circuit, 1/18/2017)



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