13-1262-cv Auricchio v. Town of Dewitt, et al.



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 29 th** **day of January, two thousand fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **DENNY CHIN,** 7 **SUSAN L. CARNEY** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **NICHOLAS M. AURICCHIO,** 12 **Plaintiff-Appellant ,**  13 14 **-v.- 13-1262-cv** 15 16 **TOWN OF DEWITT; TOWN OF DEWITT POLICE** 17 **DEPARTMENT; EUGENE J. CONWAY,** 18 **Individually and in his official** 19 **capacity as Chief of Police for the** 20 **Town of Dewitt; BRENTON WHITE,** 21 **Individually and in his official** 22 **capacity as Police Officer for the** 23 **Town of Dewitt Police Department;** 24 **DAMON GAGNIER, Individually and in his** 25 **official capacity as Police Officer** 26 **for the Town of Dewitt Police** 27 **Department;** 28 **Defendants-Appellees ;**  29

11 **JOHN DOE, Individually and in his** 2 **capacity as a Police Officer for the** 3 **Town of Dewitt Police Department;** 4 **Defendant**

**.** 5 - - - - - - - - - - - - - - - - - - - -X 6 7 **FOR APPELLANT:** Michael J. Auricchio, Syracuse, 8 New York. 9 10 **FOR APPELLEES:** Frank W. Miller, The Law Firm of 11 Frank W. Miller, East Syracuse, 12 New York. 13 14 Appeal from a judgment of the United States District 15 Court for the Northern District of New York (Suddaby, J. ). 16 17 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 18 **AND DECREED**that the judgment of the district court be 19
**AFFIRMED**

. 20 21 Nicholas Auricchio appeals from a judgment of the 22 United States District Court for the Northern District of 23 New York (Suddaby, J. ), granting summary judgment in favor 24 of defendants-appellees

. We assume the parties’ familiarity 25 with the underlying facts, the procedural history, and the 26 issues presented for review. 27 28 We review a grant of summary judgment de novo . See 29 Gonzalez v. City of Schenectady , 728 F.3d 149, 154 (2d Cir. 30 2013). “Summary judgment is appropriate if there is no 31 genuine dispute as to any material fact and the moving party 32 is entitled to judgment as a matter of law.” Id. ; accord 33 Fed. R. Civ. P. 56(a). In determining whether there are 34 genuine disputes of material fact, the court is “‘required 35 to resolve all ambiguities and draw all permissible factual 36 inferences in favor of the party against whom summary 37 judgment is sought.’” Terry v. Ashcroft , 336 F.3d 128, 137 38 (2d Cir. 2003) (quoting Stern v. Trs. of Columbia Univ. in 39 City of N.Y. , 131 F.3d 305, 312 (2d Cir. 1997)). There is 40 no genuine dispute for trial “[w]here the record taken as a 41 whole could not lead a rational trier of fact to find for 42 the non-moving party.” Matsushita Elec. Indus. Co. v. 43 Zenith Radio Corp. , 475 U.S. 574, 587 (1986). 44 45

2This suit arises out of Auricchio’s arrest on East 1 Genessee Street, in the Town of Dewitt, for violating the 2 Town’s Noise Control Law by preaching. SeeTown of Dewitt 3 Code, Ch. 126 (the “noise ordinance”). We affirm for 4 substantially the same reasons set forth by the district 5 court in its well-reasoned decision dated March 8, 2013. 6 SeeAuricchio v. Town of DeWitt , 2013 U.S. Dist. LEXIS 31679 7 (N.D.N.Y. Mar. 8, 2013). 8 9 In particular, we have upheld the constitutionality of 10 similarly-worded statutes against facial challenges under 11 the First Amendment. See, e.g. , Costello v. City of 12 Burlington , 329 F. App’x 330, 331 (2d Cir. 2009); Deegan v. 13 City of Ithaca , 444 F.3d 135, 140 (2d Cir. 2006). 14 Auricchio’s as-applied challenge is that the noise 15 ordinance’s exceptions render the ordinance impermissibly 16 content-based. We disagree. “[E]nforcement of the noise 17 control ordinance did not burden substantially more speech 18 than necessary to achieve [Dewitt’s] goal of curbing 19 excessive noise[,]” because the undisputed evidence 20 demonstrates that Auricchio’s “noise impinged on the use of 21 the neighborhood by others with equal claim[.]” Costello v. 22 City of Burlington , 632 F.3d 41, 46 (2d Cir. 2011). 23 Finally, we agree with the district court that the defendant 24 police officers had probable cause to arrest Auricchio; in 25 any event, they are entitled to qualified immunity on all of 26 Auricchio’s claims because, “[c]onsidered against the 27 backdrop of our prior holdings, it is clear [that] ‘officers 28 of reasonable competence could disagree on the legality of 29 [Auricchio’s] actions,’ especially in light of the multitude 30 of uses [East Genesee] Street must accommodate.” Id. at 52 31 (Pooler, J., concurring) (citation omitted). 32 33 For the foregoing reasons, and finding no merit in 34 Auricchio’s other arguments, we hereby **AFFIRM** the judgment 35 of the district court. 36 37 FOR THE COURT: 38 CATHERINE O’HAGAN WOLFE, CLERK 39 40

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