While driving through Liberty, New York, on May 4, 2012, Willian Barboza, a 21-year-old motorist from Connecticut, was pulled over for speeding. Barboza decided not to contest the fine, but he expressed his displeasure on the payment form he mailed to the Town of Liberty Justice Court. "FUCK YOUR SHITTY TOWN BITCHES," he wrote in capital letters. He also crossed out Liberty and replaced it with Tyranny.
Five months later, as if to confirm that description, local police arrested Barboza for "aggravated harassment in the second degree"—a charge that was ultimately dismissed by a municipal judge who commented that "no citation is necessary for this Court to determine that the language under the circumstances here, offensive as it is, is protected" by the First Amendment. Last week, in a decision that the New York Civil Liberties Union announced yesterday, a federal judge agreed, allowing Barboza's lawsuit against the town and a local prosecutor to proceed. The decision regarding the assistant district attorney is especially notable because prosecutors are rarely held accountable for violating people's constitutional rights.
"Plaintiff's arrest violated his clearly established constitutional right to engage in and be free from arrests because of protected speech," said U.S. District Judge Cathy Seibel at a hearing in White Plains last Thursday. The provision under which Barboza was charged, New York Penal Law Section 240.30(1), made it a Class A misdemeanor to communicate with someone "in a manner likely to cause annoyance or alarm" and "with intent to harass, annoy, threaten or alarm" that person. Last year the New York Court of Appeals, the state's highest court, overturned that provision on First Amendment grounds. But even before then, Seibel said, it was clear the statute was unconstitutional unless it was narrowly construed to cover only "fighting words" or "true threats," two categories of speech that the U.S. Supreme Court has said are not protected by the First Amendment.
Barboza's written protest of his speeding ticket, although it upset the clerks at the town court, clearly did not fit either category. The fighting words doctrine applies only to in-person speech that is "inherently likely to provoke a violent reaction," while true threats communicate an intent to commit an act of violence against a particular individual or group. Furthermore, in 2003—nine years before Barboza's arrest—the New York Court of Appeals had rejected aggravated harassment charges against a woman who left "crude and offensive" messages on the answering machine of the Ossining Parking Violations Bureau. "That decision is on all fours with this case," Seibel said. "It dealt with offensive language used to express to government employees dissatisfaction with government action."
In short, Sullivan County Assistant District Attorney Robert Zangala, who instructed police to arrest Barboza, should have known that action was unconstitutional, and it's pretty clear he did. Seibel noted that Zangala and his boss, Sullivan County District Attorney James Farrell, "discussed the fact that plaintiff might have a First Amendment defense to the charge," but "Farrell instructed Zangala to file the charge" anyway. "I don't quite see how one can at once believe that the First Amendment could be raised as a defense to the charge and at the same time be unaware of any constitutional impediments to bringing the charge," Seibel said. "It almost sounds like D'Agata and Farrell knew the arrest was unconstitutional but were willing to go forward and wait and see if plaintiff would realize it."
Because prosecutors enjoy "absolute immunity" for pursuing charges against a defendant, Barboza cannot hold Zangala responsible for that decision. But since "a prosecutor's participation in the execution of an arrest is not protected by absolute immunity," Seibel said, Zangala cannot take refuge behind that impervious shield. Nor does he deserve qualified immunity, she said, because the arrest violated a clearly established right. Hence Barboza's claim against Zangala can proceed to trial, which will "determine the damages, if any."
By contrast, Seibel dismissed Barboza's claim against Detective Steven D'Agata and Officer Melvin Gorr, who took him into custody, because they acted under Zangala's direction. "In these circumstances, where Zangala prompted D'Agata to draft the charge, Zangala let D'Agata know that he and his boss approved of it and Zangala reviewed and approved the instrument before it was filed, the officers could hardly be expected to refuse the ADA's request or instructions," Seibel said. "It would not be reasonable to expect officers to know that an action seemingly endorsed by the district attorney, assistant district attorneys, and a judge was not proper." The judge was Town Judge Brian Rourke, who also played a key role in the violation of Barboza's rights, referring the case to Zangala and ordering Barboza to appear in court so he could be arrested.
Although Seibel ruled that D'Agata and Gorr are protected by qualified immunity, she nevertheless concluded that Barboza should be allowed to pursue his claim against Liberty by arguing that the town failed to train its police officers in how to avoid arresting people for exercising their First Amendment rights. Remarkably, Police Chief Scott Kinne "testified that he was [not] aware of any cases limiting the application of Section 240.30(1), any court rulings interpreting the law, or any First Amendment problems arising from the law." Barboza's lawyers called Seibel's attention to nine Liberty cases brought under that provision between 2007 and 2010 that arguably involved constitutionally protected speech, plus similarly questionable cases of "disorderly conduct." Although Seibel expressed skepticism that Barboza will be able to meet the "stringent standard" for proving a failure-to-train claim, which requires showing "deliberate indifference" to constitutional violations, she said he should get a chance to make his case.