concluding that the district court erred as a matter of law in requiring the plaintiff to “prove defendants’ actions effectively chilled the exercise of his First Amendment right”
How later courts described this case
- concluding that the district court erred as a matter of law in requiring the plaintiff to “prove defendants’ actions effectively chilled the exercise of his First Amendment right”
- determining that probable cause could not defeat the plaintiff’s First Amendment retaliation claim insofar as it was premised on the issuance of a non-criminal regulatory enforcement action
- noting that following Weiss and United Aircraft Corp., the Second Circuit has “lent support” to the interpretation that probable cause is a complete defense to an abuse of process claim because it is an “excuse or justification”
- explaining that the existence of probable cause effectively negates “retaliatory motive” in a First Amendment retaliatory prosecution claim.
Written by the judges who cited it.
The opinion
14‐3253‐cv
Mangino v. Inc. Vill. of Patchogue
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2015
No. 14‐3253‐cv
JOHN MANGINO,
Plaintiff‐Appellant,
v.
INCORPORATED VILLAGE OF PATCHOGUE,
JOHN P. POULOS, AND JAMES NUDO,
Defendants‐Appellees.*
On Appeal from the United States District Court
for the Eastern District of New York
ARGUED: OCTOBER 20, 2015
DECIDED: DECEMBER 22, 2015
Before: NEWMAN, WINTER, and CABRANES, Circuit Judges.
The Clerk of Court is directed to amend the caption of this appeal as
*
indicated above.
On appeal from the March 10, 2014 judgment of the United
States District Court for the Eastern District of New York (Joseph F.
Bianco, Judge) dismissing plaintiff‐appellant John Mangino’s
complaint against defendants‐appellees the Incorporated Village of
Patchogue and Fire Marshal John P. Poulos, and the District Court’s
August 1, 2014 order denying Mangino’s motion to set aside the
verdict and for a new trial.
We (1) AFFIRM the District Court’s dismissal of Mangino’s
First Amendment retaliation claim, as the criminal summonses on
which it is premised were supported by probable cause, the issuance
of the non‐criminal Fire Prevention Violation Order on which it is
premised was otherwise justified, and Mangino has not made any
argument that the issuance of the Fire Prevention Violation Order
was significantly more serious than other action Poulos had
discretion to take; (2) AFFIRM the District Court’s dismissal of
Mangino’s abuse‐of‐process claim on qualified‐immunity grounds
because, at the time of the alleged conduct, although there was a
clearly established right to be free from abuse of process under New
York law, there was no clearly established right to be free from
abuse of process where probable cause existed; and (3) AFFIRM the
District Court’s denial of Mangino’s motion to set aside the verdict
and for a new trial because it is clear that, when read in context, the
District Court’s jury instructions were not erroneous.
2
ROBERT A. SIEGEL, Law Office of Robert A.
Siegel, New York, NY, for Plaintiff‐
Appellant.
MARK A. RADI (Brian S. Sokoloff, on the
brief), Carle Place, NY, for Defendants‐
Appellees.
JOSÉ A. CABRANES, Circuit Judge:
The principal question presented is whether, in August 2005,
there was a clearly established right to be free from abuse of process
under New York law even where probable cause existed. We
conclude that there was not.
Plaintiff‐appellant John Mangino (“Mangino”) appeals from
the March 10, 2014 judgment of the United States District Court for
the Eastern District of New York (Joseph F. Bianco, Judge) dismissing
his complaint against defendant‐appellees the Incorporated Village
of Patchogue (the “Village”) and Village Fire Marshal John P. Poulos
(“Poulos”). The appeal seeks review of the District Court’s
September 23, 2010 order dismissing Mangino’s First Amendment
retaliation claim, see Mangino v. Inc. Vill. of Patchogue, 739 F. Supp. 2d
205 (E.D.N.Y. 2010), and its September 30, 2011 order dismissing his
abuse‐of‐process claim, see Mangino v. Inc. Vill. of Patchogue, 814 F.
Supp. 2d 242 (E.D.N.Y. 2011). Mangino also appeals from the
District Court’s August 1, 2014 post‐judgment order denying his
3
motion to set aside the verdict and for a new trial. See Mangino v. Inc.
Vill. of Patchogue, No. 06‐CV‐5716 (JFB), 2014 WL 3795572 (E.D.N.Y.
Aug. 1, 2014).
As explained more fully below, we (1) AFFIRM the District
Court’s dismissal of Mangino’s First Amendment retaliation claim,
as the criminal summonses on which it is premised were supported
by probable cause, the issuance of the non‐criminal Fire Prevention
Violation Order on which it is premised was otherwise justified, and
Mangino has not made any argument that the issuance of the Fire
Prevention Violation Order was significantly more serious than
other action Poulos had discretion to take; (2) AFFIRM the District
Court’s dismissal of Mangino’s abuse‐of‐process claim on qualified‐
immunity grounds because, at the time of the alleged conduct,
although there was a clearly established right to be free from abuse
of process under New York law, there was no clearly established
right to be free from abuse of process where probable cause existed;
and (3) AFFIRM the District Court’s denial of Mangino’s motion to
set aside the verdict and for a new trial because it is clear that, when
read in context, the District Court’s jury instructions were not
erroneous.
BACKGROUND
At some point between 2001 and 2003, Mangino purchased
with his wife, whom the District Court dismissed from the case, an
apartment building in Patchogue, New York. Pl.’s App’x 67. When
he purchased the building, he applied for a two‐year rental permit,
4
as required by the Village’s rental‐permit law. Id. at 74. After he
received the permit, he began renting apartments to tenants. When
his permit expired in or around 2004, he did not renew it. Id. at 78,
80–81.
In January 2005, defendant‐appellee James Nudo (“Nudo”),
the Village’s Housing Inspector and Code Enforcement Officer,
issued criminal summonses to Mangino for continuing to rent out
apartments despite his failure to renew his rental permit. Id. at 83–
84. Mangino challenged in court these summonses and their manner
of service, as well as the validity of the Village’s rental‐permit law.
Id. at 85. Mangino alleges that, in response, the Village prosecutor
threatened him, stating that if he did not settle the pending litigation
against the Village or accept a plea bargain, he would be “hit with a
barrage of summonses.” Id.
On July 21, 2005, one of Mangino’s tenants, Dawn Gucciardo
(“Gucciardo”), called the Village Housing Department and
requested that someone check the power in her apartment. Id. at
142–44. Nudo answered Gucciardo’s call, id. at 142, and later filed an
incident report in which he wrote that Gucciardo had told him that
she feared the conditions in her apartment, which included electrical
problems, would result in a fire, id. at 142–44; Ex. RR, Mangino v. Inc.
Vill. of Patchogue, No. 06‐CV‐5716 (JFB) (E.D.N.Y. Feb. 19, 2010), ECF
No. 47. Nudo forwarded this incident report to Poulos. Pl.’s App’x
145. On July 22, 2005, Gucciardo called the Housing Department to
report “that things were ‘getting fixed,’” but Poulos was not present
when the Housing Department received this call. Id.
5
According to defendants‐appellees, on July 25, 2005,
Gucciardo called the Village Housing Department again, this time to
complain that the outlets in her apartment were sparking or arcing.
Id. at 146–49. Defendants‐appellees claim that, when Poulos was
informed of this call, he immediately departed for Mangino’s
building to investigate. Id. at 151–52. Mangino, however, claims that
Gucciardo never called the Village Housing Department on July 25,
2005. Id. at 146–49.
When Poulos arrived at the building, he informed Mangino
that he had come to check the outlet in Gucciardo’s apartment. Id. at
159. Mangino refused to let Poulos into the building without a
warrant. Id. at 160. Poulos then called Nudo to request his assistance
and informed Mangino that, if Mangino would not allow Poulos in,
Poulos would call the Village Fire Department. Id. at 160–61. When
Mangino still refused to grant Poulos entry, Poulos called in an “all‐
encompassing general alarm.” Id. at 161–63.
When the Village firemen arrived, they inspected the building,
including Gucciardo’s apartment and the basement. Id. at 168, 170–
73. They did not find any sparking or arcing outlets in Gucciardo’s
apartment. Id. at 172. But according to defendants‐appellees, a
Captain Welsh noticed two potential hazards while in the basement
and radioed Village Fire Chief Joseph Wagner, who was still outside
the building. Id. at 173–74. Defendants‐appellees claim that Welsh
and Wagner then requested Poulos’s assistance in inspecting these
potential hazards. Id. at 177–78. Poulos eventually entered the
building and proceeded to the basement. Id. at 179–80. Defendants‐
6
appellees assert that Captain Welsh and the other inspecting firemen
pointed out the two potential hazards to Poulos, at which point
Poulos wrote down his observations and issued a Fire Prevention
Violation Order (“FPVO”) to Mangino. Id. at 181–92. The FPVO
required Mangino, by September 1, 2005, to repair the hazardous
conditions or supply the Village with a licensed engineer’s report
stating that no corrective action was necessary; this deadline Poulos
later extended to October 31, 2005. Id. at 192–93, 583–87.
On August 11, 2005, Nudo and Village Housing Coordinator
Joanne Gallo visited Mangino’s building to investigate Gucciardo’s
July 21, 2005 complaints, and inspected Gucciardo’s apartment with
her consent. Id. at 200–02. On the same day, Nudo issued 18 separate
summonses to Mangino for a variety of alleged violations of the
Village Code. Id. at 204. On August 27, 2005, Mangino was served
with additional summonses, issued by Nudo and dated August 5, 8,
9, 11, 12, 13, 14, 15, and 16, for failure to renew his rental permit on
those dates. Id. at 84–103. Although Mangino admits that he did not
have a rental permit in August 2005 and that he continued to rent
apartments in his building during this time, all of the summonses
issued to him for violation of the Village’s rental‐permit law were
ultimately dismissed. Id.
On February 14, 2008, Mangino filed the operative Second
Amended Complaint, in which he asserted various claims against
defendants‐appellees, including claims under 42 U.S.C. § 1983 for
violations of the First and Fourth Amendments to the U.S.
7
Constitution. Mangino, 739 F. Supp. 2d at 225–26.1 Mangino’s sole
First Amendment claim was for retaliation, id. at 247, while his
Fourth Amendment claims included abuse of process and
warrantless entry, id. at 226. On September 23, 2010, following the
parties’ cross‐motions for summary judgment, the District Court
dismissed Mangino’s First Amendment retaliation claim because he
had failed to show that defendants‐appellees’ allegedly retaliatory
conduct chilled the exercise of his First Amendment rights. Id. at
248–49. On September 30, 2011, the District Court also dismissed
Mangino’s Fourth Amendment abuse‐of‐process claim on qualified‐
immunity grounds. Mangino, 814 F. Supp. 2d at 249–52.
The case proceeded to trial on Mangino’s warrantless‐entry
claim, which trial took place from February 24 through March 10,
2014. Mangino, 2014 WL 3795572, at *1. The jury returned a
unanimous verdict for defendants‐appellees, concluding that
Mangino had not proven by a preponderance of the evidence that
Poulos fabricated an exigent circumstance and thus lacked probable
cause to enter Mangino’s building without a warrant. Id. In a
subsequent motion under Rule 59(a) of the Federal Rules of Civil
Procedure, Mangino argued that the District Court’s jury
1Section 1983 provides that “[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding
for redress . . . .” 42 U.S.C. § 1983. See generally Rehberg v. Paulk, 132 S. Ct. 1497,
1501–02 (2012).
8
instructions improperly allowed the jury to consider events other
than those that allegedly took place on July 25, 2005 as justification
for the warrantless entry. Id. at *1, *5–8. The District Court rejected
this argument, id. at *8, and Mangino timely appealed.
DISCUSSION
I. First Amendment Retaliation Claim
We begin with Mangino’s argument that the District Court
erred in dismissing his First Amendment retaliation claim. “We
review a district court’s grant of summary judgment de novo.”
Baldwin v. EMI Feist Catalog, Inc., —F.3d—, 2015 WL 5853739, at *7
(2d Cir. Oct. 8, 2015). Here, the District Court held that, to make out
a First Amendment retaliation claim, “the plaintiff must show
that . . . defendants’ actions effectively chilled the exercise of [his]
First Amendment right.” Mangino, 739 F. Supp. 2d at 247 (internal
quotation marks omitted). According to the District Court, Mangino
failed to satisfy this requirement because “the undisputed evidence
indicate[d] that [his] conduct was not, in fact, chilled by defendants’
alleged retaliatory conduct.” Id. at 249. In so holding, the District
Court relied primarily on our decision in Curley v. Village of Suffern,
268 F.3d 65 (2d Cir. 2001), in which we stated—precisely as the
District Court recited—that a “plaintiff must prove . . . defendants’
actions effectively chilled the exercise of his First Amendment
right.” Id. at 73.
But more than three years after the District Court’s decision,
we acknowledged in Dorsett v. County of Nassau, 732 F.3d 157 (2d
9
Cir. 2013), that “there is some tension in our First Amendment
standing cases”; that “[w]e have sometimes given the impression
that silencing of the plaintiff’s speech is the only injury sufficient to
give a First Amendment plaintiff standing”; and that our description
of the chilling‐effect requirement in Curley “was an imprecise
statement of law.” Id. at 160. We clarified that “[c]hilled speech is not
the sine qua non of a First Amendment claim,” and that “[a] plaintiff
has standing if he can show either that his speech has been adversely
affected by the government retaliation or that he has suffered some
other concrete harm.” Id. (second emphasis supplied).
Thus, under Dorsett, the District Court’s dismissal of
Mangino’s claim was incorrect as a matter of law—although we
emphasize that it was imprecision in our own precedents, on which
the District Court understandably relied, that caused this result.
That the District Court’s dismissal was in error, however, does not
necessarily mean that Mangino’s First Amendment retaliation claim
should be reinstated, as “we are entitled to affirm the judgment on
any basis that is supported by the record.” M.O. v. N.Y.C. Dep’t of
Educ., 793 F.3d 236, 245 (2d Cir. 2015) (internal quotation marks
omitted).
“The existence of probable cause will defeat . . . a First
Amendment claim that is premised on the allegation that defendants
prosecuted a plaintiff out of a retaliatory motive, in an attempt to
silence [him].” Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012); see
also Hartman v. Moore, 547 U.S. 250, 252 (2006) (holding that, in a
Bivens action “for inducing prosecution in retaliation for speech,” a
10
“complaint [cannot] state[ ] an actionable violation of the First
Amendment without alleging an absence of probable cause to
support the underlying criminal charge,” and “that want of probable
cause must be . . . proven”).2 This is because “[a]n individual does
not have a right under the First Amendment to be free from a
criminal prosecution supported by probable cause, even if that
prosecution is in reality an unsuccessful attempt to deter or silence
criticism of the government.” Fabrikant, 691 F.3d at 215 (internal
quotation marks omitted). Here, as the District Court correctly
found, see Mangino, 739 F. Supp. 2d at 230 n.22, probable cause
existed with respect to each of the criminal summonses issued to
Mangino—including Ticket #16518, which is the only such summons
that Mangino argues on appeal was not supported by probable
cause, see Pl.’s Br. 26 (“Plaintiffs have conceded that probable cause
existed for the issuance of all but two of the 30 tickets issued. With
respect to those two, plaintiffs draw the Court’s attention to
appearance ticket # 16518[.]”); id. at 27 n.3 (“[P]laintiffs[’] focus is on
ticket number 16518[.]”).
Mangino asserts that “there was no probable cause for the
issuance of that ticket because it was written a day before the crime
being alleged[.]” Id. at 26. But we find unpersuasive Mangino’s
position that “whether probable cause existed for [the] issuance [of
Ticket # 16518] should be determined by the circumstances at the
2 “Though more limited in some respects not relevant here, a Bivens action is
the federal analog to suits brought against state officials under . . . 42 U.S.C.
§ 1983.” Hartman, 547 U.S. at 255 n.2.
11
time the [summons] was issued”—by which he means at the time
the summons was written—and “not when the [summons] was
served and filed.” Id. at 28. Mangino identifies no controlling
authority that supports this proposition, and the single district‐court
decision he cites is inapposite. See id. Furthermore, we have
“agree[d] with [a] district court that [a plaintiff’s] claim[ ] of . . . First
Amendment retaliation fail[ed] because [the] defendants had
probable cause to believe [that the plaintiff] committed” the offense
at issue, Fabrikant, 691 F.3d at 215–16, where the district court had
analyzed whether probable cause existed at the time the defendants
arrested the plaintiff and executed a search warrant against her, and
not at some earlier point, such as when the warrant was sought or
signed, see Fabrikant v. French, 722 F. Supp. 2d 249, 256–57 (N.D.N.Y.
2010), aff’d, 691 F.3d 193 (2d Cir. 2012).3 Accordingly, we affirm the
District Court’s order of September 23, 2010 dismissing Mangino’s
First Amendment retaliation claim insofar as it is premised on the
summonses.
But Mangino’s First Amendment retaliation claim is not
premised solely on the summonses—it is also premised on Poulos’s
issuance of the FPVO. And the parties seem to agree that the
issuance of the FPVO was not a criminal prosecution, but a non‐
criminal regulatory enforcement action. See Pl.’s Reply Br. 6 (“[T]he
Relatedly, we have also held that “[t]he existence or nonexistence of
3
probable cause in a malicious prosecution suit . . . is determined, at the earliest,
as of the time prosecution is commenced.” Rothstein v. Carriere, 373 F.3d 275, 292
(2d Cir. 2004).
12
issuance . . . of the . . . FPVO was not a[ ] . . . prosecution.”); Defs.’ Br.
32–33 (“The [FPVO] did not constitute a prosecution. . . . [P]laintiffs
did not have to appear in court on the FPVO.”). As such, probable
cause cannot defeat Mangino’s First Amendment claim insofar as it
is premised on the issuance of the FPVO. Cf. Bd. of Educ. of Indep. Sch.
Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 828 (2002)
(“The probable‐cause standard . . . is peculiarly related to criminal
investigations . . . .” (internal quotation marks omitted)).
Be that as it may, Mangino does not dispute that he
committed the violations on which Poulos’s issuance of the FPVO
was based. And while it may be true that, at least under certain
circumstances, a plaintiff can prove First Amendment retaliation
even if the measures taken by the state were otherwise justified, he
may do so only if he can show that the defendant, for improper
motive, took regulatory action that was significantly more serious
than other action he had discretion to take. See Royal Crown Day Care
LLC v. Dep’t of Health & Mental Hygiene of City of N.Y., 746 F.3d 538
(2d Cir. 2014) (official, for improper motive, ordered facility closed
rather than order code violations remedied). Here, Mangino has not
made any argument that the issuance of the FPVO was significantly
more serious than other action Poulos had discretion to take.
Moreover, nothing in the record would support such an argument.4
4 Nor is this a case like Beechwood Restorative Care Center v. Leeds, 436 F.3d 147
(2d Cir. 2006), where state officials had discretion to classify a nursing home’s
deficiencies in various categories, each resulting in consequences that escalated
in seriousness.
13
We therefore also affirm the District Court’s dismissal of Mangino’s
First Amendment retaliation claim insofar as it is premised on
Poulos’s issuance of the FPVO.
II. Abuse of Process Claim
We turn next to Mangino’s argument that the District Court
erred in dismissing his abuse‐of‐process claim, which dismissal we
also review de novo. See, e.g., Doe ex rel. Doe v. Whelan, 732 F.3d 151,
155 (2d Cir. 2013) (reviewing de novo a district court’s grant of
summary judgment on qualified‐immunity grounds). The basis for
this dismissal was the District Court’s determination that Nudo was
entitled to qualified immunity because, under New York law,
“although there was a clearly established right to be free from
malicious abuse of process at the time of the alleged conduct”— that
is, in August 2005 —“it was not clearly established that such a claim
[could] exist even when probable cause existed for the issuance of
the [summonses].” Mangino, 814 F. Supp. 2d at 247. We agree.
There has been considerable confusion within our Circuit
regarding whether probable cause is a complete defense to a claim
of abuse of process under New York law.5 In Weiss v. Hunna, 312
When a plaintiff asserts an abuse‐of‐process claim under Section 1983, “we
5
turn to state law to find the elements,” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir.
1994)—in this case, New York State law. See also Savino v. City of N.Y., 331 F.3d
63, 76–77 (2d Cir. 2003) (relying on New York State case law in holding that the
plaintiff had failed to state a claim for abuse of process under Section 1983); cf.
Hart v. Mannina, 798 F.3d 578, 593 (7th Cir. 2015) (“Assuming abuse of process is
14
F.2d 711 (2d Cir. 1963), we suggested that it is not, holding that “the
gist of the tort of abuse of process, as distinguished from malicious
prosecution, is not commencing an action or causing process to issue
without justification, but misusing or misapplying process justified in
itself for an end other than that which it was designed to
accomplish.” Id. at 717 (emphasis supplied) (internal quotation
marks omitted); see also Alexander v. Unification Church of Am., 634
F.2d 673, 677–78 (2d Cir. 1980) (same), overruled on other grounds by
PSI Metals, Inc. v. Firemen’s Ins. Co. of Newark, N.J., 839 F.2d 42, 43 (2d
Cir. 1988).6
But in PSI Metals, Inc. v. Firemen’s Insurance Co. of Newark, New
Jersey, 839 F.2d 42 (2d Cir. 1988), we held that one of the elements of
an abuse‐of‐process claim under New York law is “an intent to do
harm without excuse or justification.” Id. at 43 (emphasis supplied)
(internal quotation marks omitted); see also Cook v. Sheldon, 41 F.3d
73, 80 (2d Cir. 1994) (same); Shain v. Ellison, 273 F.3d 56, 68 (2d Cir.
cognizable under § 1983, we would look to state law to determine the elements of
the claim . . . .”).
6 In support of his argument that probable cause is not a complete defense to
an abuse‐of‐process claim, Mangino repeatedly cites Lodges 743 & 1746,
International Ass’n of Machinists & Aerospace Workers v. United Aircraft Corp., 534
F.2d 422 (2d Cir. 1975), in which we held that “[a]buse of process . . . does not
depend upon whether or not the action was brought without probable cause or
upon the outcome of the litigation.” Id. at 465 n.85. See Pl.’s Br. 33, 34, 40; Pl.’s
Reply Br. 20. United Aircraft Corp., however, concerned a labor strike in
Connecticut, and did not involve New York law. Thus, it does not bear on the
matter at hand. See ante note 5.
15
2001) (same); Savino v. City of N.Y., 331 F.3d 63, 76 (2d Cir. 2003)
(same).
In the years between our decision in PSI Metals and August
2005, when the alleged conduct occurred, numerous district courts
within our Circuit interpreted this formulation to mean that
probable cause is a complete defense to an abuse‐of‐process claim
under New York law, because it is an “excuse or justification.”7
Indeed, we have since lent support to this interpretation in a non‐
precedential summary order, in which we held that “[t]he
conclusion that [the plaintiff] could not prevail on her claims that the
7 See, e.g., Granato v. City of N.Y., No. 98‐CV‐667 (ILG), 1999 WL 1129611, at *7
(E.D.N.Y. Oct. 18, 1999) (“[A] showing of probable cause at the time process
issued suffices also to establish ‘excuse or justification’ for the purposes of a
defense to abuse of process.” (citing Berman v. Silver, Forrester & Schisano, 549
N.Y.S.2d 125, 127 (2d Dep’t 1989) (dismissing the plaintiff’s abuse‐of‐process
claim in part because “the defendants had probable cause to commence the prior
action”))); Harmer v. City of Lockport, No. 98‐CV‐10E (JTE), 2000 WL 210201, at *4
(W.D.N.Y. Feb. 9, 2000) (“One element [of] an abuse‐of‐process claim is that such
process was employed without excuse or justification, and a showing that
defendants had probable cause to effectuate plaintiff’s arrest will suffice to
establish a justification for the purpose of defeating such a claim.” (citation
omitted)); Hernandez v. Wells, No. 01‐CV‐4376 (MBM), 2003 WL 22771982, at *9
(S.D.N.Y. Nov. 24, 2003) (declining to dismiss the plaintiff’s abuse‐of‐process
claim only because the plaintiff had “raised a genuine issue of material fact about
whether [one of the defendants] had probable cause to assert that [the plaintiff]
had assaulted him”); Hickey v. City of N.Y., No. 01‐CV‐6506 (GEL), 2004 WL
2724079, at *7 (S.D.N.Y. Nov. 29, 2004) (“[T]he existence of probable cause offers
a complete defense to [abuse of process].”), aff’d, 173 F. App’x 893 (2d Cir. 2006);
Almonte v. City of N.Y., No. 03‐CV‐5078 (ARR), 2005 WL 1229739, at *5 (E.D.N.Y.
May 20, 2005) (“The existence of probable cause offers a complete defense to a
claim of abuse of process.”).
16
officers lacked probable cause for her arrest . . . required dismissal of
her . . . claims of abuse of process.” Jones v. J.C. Penny’s Dep’t Stores
Inc., 317 F. App’x 71, 74 (2d Cir. 2009).
We need not, and do not, resolve this confusion here, as its
very existence establishes that Nudo is entitled to qualified
immunity.8 “[T]he qualified immunity defense . . . provides ample
protection to all but the plainly incompetent or those who
knowingly violate the law. . . . [I]f officers of reasonable competence
could disagree on th[e] issue, immunity should be recognized.”
Malley v. Briggs, 475 U.S. 335, 341 (1986); see also Mullenix v. Luna, 136
S. Ct. 305, 308 (2015) (same). As the foregoing makes clear, it was not
only officers of reasonable competence, but federal judges, who
could so disagree. Cf. Pearson v. Callahan, 555 U.S. 223, 244–45 (2009)
(“[O]fficers are entitled to rely on existing lower court cases without
facing personal liability for their actions.”); Richardson v. Selsky, 5
F.3d 616, 623 (2d Cir. 1993) (“If the district judges in the Southern
District of New York, who are charged with ascertaining and
applying the law, could not determine the state of the law with
reasonable certainty, it seems unwarranted to hold . . . officials to a
standard that was not even clear to the judges . . . .”); Hope v. Pelzer,
8 It may be possible to reconcile PSI Metals with Weiss by reading the former’s
reference to “excuse or justification” as a reference to economic or social excuses or
justifications, as opposed to legal excuses or justifications such as probable cause.
See Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994) (“To prove abuse of
process, plaintiff must show . . . the person activating the process must have been
motivated to do harm without economic or social excuse or justification . . . .”
(emphasis supplied)). But again, we do not address, much less resolve, that issue.
17
536 U.S. 730, 763 (2002) (Thomas, J., dissenting) (“[I]n the face of
recent Federal District Court decisions specifically rejecting [similar]
claims . . . , it seems contrary to the purpose of qualified immunity to
hold that one vague sentence plucked out of a 21‐year‐old Court of
Appeals opinion provided clear notice to respondents . . . .”).9
Accordingly, we affirm the District Court’s dismissal of Mangino’s
abuse‐of‐process claim.10
III. Jury Instructions
Finally, substantially for the reasons stated in the District
Court’s sound decision denying Mangino’s motion to set aside the
verdict and for a new trial, see Mangino, 2014 WL 3795572, at *5–8,
To be clear, we cite the district‐court decisions and summary order
9
discussed above merely as evidence, and not the source, of the ambiguity in the
case law. The ambiguity was created by Second Circuit precedent alone—cases
such as Weiss on one side and cases such as PSI Metals on the other.
10 This appeal “presents the legal possibility that law, which may have once
been clear [for purposes of qualified immunity], can become unclear later.”
Santamorena v. Georgia Military Coll., 147 F.3d 1337, 1342 n.11 (11th Cir. 1998).
Which is to say, it may be the case that, under this Circuit’s interpretation of New
York law, the existence of a right to be free from abuse of process even where
probable cause existed was incontrovertible in 1963, when Weiss was decided,
but had been called into question by 1988, when PSI Metals was decided, or 2005,
when the alleged conduct occurred. No matter—“[t]he nature of the law is not
always to move from unsettled to settled. Although one of our decisions may not
be expressly overruled, later cases . . . may bring its reasoning or holding into
such doubt that the elements set out in the case are no longer clearly
established . . . .” Id.; see also Townes v. City of N.Y., 176 F.3d 138, 144 (2d Cir. 1999)
(suggesting that subsequent case law can “unsettl[e]” rights once clearly
established).
18
we conclude that the District Court’s jury instructions were free of
error, regardless of whether the applicable standard of review is de
novo, see Pl.’s Br. 43, or plain error, see Defs.’ Br. 54–55.. Mangino
claims that, “in failing to contain a limiting temporal reference to
July 25th, the charge/verdict question submitted [was] inherently
confusing, misguided, and prevented a proper application of the
law,” Pl.’s Br. 45, but a review of the disputed instructions
demonstrates that they appropriately limited the jury’s
consideration of exigency to that date.
In a paragraph of the jury charge that specifically referred to
“July 25, 2005,” the District Court instructed the jury that, “[i]n
particular, the defendants maintain that the Village received a
telephone call from a tenant complaining about an arcing or
sparking wire in an apartment, which justified entry into the house
without a warrant to ensure the safety of the tenants.” Pl.’s App’x
2165. The theory that defendants‐appellees advanced at trial was
that Gucciardo called the Village on July 25, 2005 to complain about
an arcing or sparking wire, not that she did so on any earlier date.
The instructions were therefore not erroneous.
CONCLUSION
We have considered all of Mangino’s other arguments and
find them to be without merit. Accordingly, for the foregoing
reasons, we:
(1) AFFIRM the District Court’s dismissal of Mangino’s First
Amendment retaliation claim, as the criminal summonses on which
19
it is premised were supported by probable cause, the issuance of the
non‐criminal Fire Prevention Violation Order on which it is
premised was otherwise justified, and Mangino has not made any
argument that the issuance of the Fire Prevention Violation Order
was significantly more serious than other action Poulos had
discretion to take;
(2) AFFIRM the District Court’s dismissal of Mangino’s
abuse‐of‐process claim on qualified‐immunity grounds because, at
the time of the alleged conduct, although there was a clearly
established right to be free from abuse of process under New York
law, there was no clearly established right to be free from abuse of
process where probable cause existed; and
(3) AFFIRM the District Court’s denial of Mangino’s motion
to set aside the verdict and for a new trial because it is clear that,
when read in context, the District Court’s jury instructions were not
erroneous.
20