14

‐ 3253

‐ cv

Mangino v. Inc. Vill. of Patchogue



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2015

No. 14

‐ 3253

‐ cv

J OHN M ANGINO

, Plaintiff

‐ Appellant

,

v.

I NCORPORATED V ILLAGE OF P ATCHOGUE

, J OHN P. P OULOS

, AND J AMES N UDO

, Defendants

‐ Appellees

. *

On Appeal from the United States District Court

for the Eastern District of New York

A RGUED : O CTOBER 20, 2015

D ECIDED : D ECEMBER 22, 2015

Before: N EWMAN

, W INTER

, and C ABRANES

, Circuit Judges

.

* The Clerk of Court is directed to amend the caption of this appeal as

indicated above.2 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.3 R OBERT A. S IEGEL

, Law Office of Robert A.

Siegel, New York, NY, for Plaintiff

‐ Appellant.

M ARK A. R ADI (Brian S. Sokoloff, on the

brief ), Carle Place, NY, for Defendants

‐ Appellees

.

J OSÉ A. C ABRANES

, 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 his4 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,5 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.6 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

‐7 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.8 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

1 Section 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).9 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 (2d10 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,” a11 “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.2.12 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

3 Relatedly, we have also held that “[t]he existence or nonexistence of

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).13 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.14 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

5 When a plaintiff asserts an abuse

‐ of

‐ process claim under Section 1983, “we

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 is15 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 5.16 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.”).17 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.18 536 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,

9 To be clear, we cite the district

‐ court decisions and summary order

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).19 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 which20 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.