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,

on the 29th 4 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