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Nicholas M. v. Town of Dewitt; Town of Dewitt Police Dep't; Eugene J. Conway

March 8, 2013

NICHOLAS M. AURICCHIO, PLAINTIFF,
v.
TOWN OF DEWITT; TOWN OF DEWITT POLICE DEP'T; EUGENE J. CONWAY, CHIEF OF POLICE; BRENTON WHITE, POLICE OFFICER; AND DAMAN GAGNIER, POLICE OFFICER; DEFENDANTS.



The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this civil rights action filed by Nicholas M. Auricchio ("Plaintiff") against the five above-captioned entities and individuals ("Defendants"), are Defendants' motion for summary judgment and/or motion to dismiss for failure to state a claim and lack of subject-matter jurisdiction, and Plaintiff's cross-motion for summary judgment. (Dkt. Nos. 29, 62.) For the reasons set forth below, Defendants' motion is granted, and Plaintiff's cross-motion is denied.

TABLE OF CONTENTS

I. RELEVANT BACKGROUND.........................................................................................3

A. Plaintiff's Amended Complaint............................................................................3

B. Recitation of Undisputed Facts.............................................................................4

1. First Incident..............................................................................................4

2. Second Incident........................................................................................12

3. Plaintiff's Arrest......................................................................................21

C. Parties' Arguments on Their Cross-Motions....................................................22

1. Defendants' Memorandum of Law........................................................22

2. Plaintiff's Opposition Memorandum of Law........................................29

3. Defendants' Reply Memorandum of Law.............................................31

II. GOVERNING LEGAL STANDARDS..........................................................................31

A. Standard Governing a Motion for Summary Judgment..................................31

B. Standard Governing a Motion to Dismiss.........................................................31

C. Standards Governing Plaintiff's Claims and Defendants' Defenses...............32

III. ANALYSIS.......................................................................................................................33

I. RELEVANT BACKGROUND

A. Plaintiff's Amended Complaint

Generally, Plaintiff's Amended Complaint asserts 21 federal and state claims arising from his arrest for violating the Town of DeWitt's noise ordinance following his preaching in the parking lot of, and then on the sidewalk across the street from, Holy Cross Church during the late afternoon of Sunday, September 6, 2009. (See generally Dkt. No. 16.)

More specifically, Plaintiff's Amended Complaint asserts eight federal claims under 42 U.S.C. § 1983 and the United States Constitution: (1) deprivation of freedom of speech under the First and Fourteenth Amendments; (2) deprivation of freedom of religion under the First and Fourteenth Amendments; (3) deprivation of due process under the Fifth and Fourteenth Amendments; (4) false arrest, unlawful detention and confinement under the Fourth and Fourteenth Amendments; (5) unlawful search and seizure under the Fourth and Fourteenth Amendments; (6) excessive force under the Fourth and Fourteenth Amendments; (7) conspiracy to deprive Plaintiff of his First, Fourth, Fifth and Fourteenth Amendment rights; and (8) failure to instruct, supervise, control, and discipline Defendant police officers so as to deprive Plaintiff of his rights under the First, Fourth, Fifth and Fourteenth Amendments. (Id.)

In addition, Plaintiff's Amended Complaint asserts 13 state claims under the New York State Constitution or New York State common law: (9) deprivation of freedom of speech under Article I, section 3 of the State Constitution; (10) deprivation of freedom of religion under Article I, section 8 of the State Constitution; (11) deprivation of due process under Article I, section 5 of the State Constitution; (12) false arrest, unlawful detention and confinement under Article I, section 12 of the State Constitution; (13) unlawful search and seizure under Article I, section 12 of the State Constitution; (14) excessive force under Article I, section 12 of the State Constitution; (15) conspiracy to deprive Plaintiff of his rights under the State Constitution; (16) common law false imprisonment; (17) common law abuse of process; (18) common law failure to instruct, supervise, control, and discipline; (19) common law assault; (20) common law battery; and (21) common law negligence. (Id.)

B. Recitation of Undisputed Facts

1. First Incident

At approximately 4:00 p.m. on Sunday, September 6, 2009, Plaintiff drove into the cul-de-sac driveway of the Holy Cross Church in the Town of DeWitt. Plaintiff came to the church to pray before a small shrine outside the entrance. Before Plaintiff left his vehicle, he saw a woman exiting the front door of the church whom he believed was dressed immodestly. In Plaintiff's own words, "[S]he was wearing incredibly tight clothing[;] she had a sleeveless top and her undergarments--her--basically, her bra straps were coming off--over--dangling over her shoulders."*fn1

As Plaintiff sat in his car and the woman walked near the passenger-side of his car, he verbally confronted her through his open driver-side window (his passenger-side window being closed). In his own words, he told her to repent all of her sins and to dress modestly. You know, I said that you should leave--'You should not go back into the church the way you're dressed. You should leave and come back modestly dressed.' I told her that, you know, [her] actions were a seduction to married men, even boys and the priest. I may have said it brings scandal on the church.*fn2

Plaintiff states that he then did an exorcism. I said, 'In the name of Jesus Christ, be gone, Satan and the fallen angels,' you know, because I felt it was a spiritual assault. As a Christian, I'm allowed to do, you know, an exorcism in the name of Jesus Christ, which I did . . . And then I told her to repent her sins, turn to Jesus Christ and be saved and to be modest. . . .

After that, the woman went back into the church.*fn3

Plaintiff decided to remain in the parking lot and preach toward the church. He drove his vehicle from the cul-de-sac in front of the church to the rear area of the church parking lot and took up a position of what he "guesstimate[d]" was approximately 50 to 75 feet from the church's front door.*fn4 He stated that he "got out of [his] car and started preaching to people about modesty," as people continued coming out of the church.

About that time, Rick Tschernjawski, a DeWitt resident living in a house across the street from the church, began to hear what he characterized as "yelling" coming from the church's parking lot.*fn5 (Plaintiff characterizes his speech at the time as "preaching.")*fn6 Mr. Tschernjawski saw Plaintiff standing in the back corner of the church parking lot and facing the front entrance of the church.*fn7 Mr. Tschernjawski guesses that, at the time, Plaintiff was about 150 feet away from him.*fn8

As Plaintiff defines it, "preaching" involves "speaking with a raised voice." Even though Plaintiff was directing his speech away from Mr. Tschernjawski, the volume of Plaintiff's speech was loud enough for Mr. Tschernjawski to hear at least some of what he was saying.*fn9 According to Mr. Tschernjawski, Plaintiff was trying to quote scripture, but was also yelling at the people coming out of the church about dressing modestly in church and calling them bad Catholics.*fn10

In the church parking lot, one man, who had come out of the church, drove up to Plaintiff and asked, "What are you doing and why are you here?"*fn11 In response, Plaintiff told the man that "I'm doing what John the Baptist would have done. . . . I'm a preacher . . . . People don't want to hear my preaching because they're predicting of their sins."*fn12 Plaintiff then admonished a woman sitting in the front seat of the same car because she was smoking a cigarette.*fn13 Plaintiff claims the man got out of the car, physically threatened Plaintiff and butted him with his chest; however, the man was eventually stopped by another man who had come out of the church.*fn14

Plaintiff states that he then performed another exorcism, this time on the aggressive man: "I did an exorcism because when someone attacks me, I feel it was a spiritual assault. And I said, 'In the name of Jesus Christ, be gone, devils . . . .'"*fn15

After the man drove way, Plaintiff was approached by a woman, whom he told to "dress modestly."*fn16 In addition, the driver of a TLC van looked over at Plaintiff, and Plaintiff believes that driver may have called the police.*fn17

From his location across the street from the front of the church, Mr. Tschernjawski saw some of the people coming out of the front entrance of the church appear to hurry to their cars (with some young children appearing to clutch their mothers), and other people appear to come out of the front entrance of the church briefly but then turn around and go back inside; from his location at the rear of the church parking lot, Plaintiff saw none of those things.*fn18

Watching the incident from in front of his house, Mr. Tschernjawski thought Plaintiff was loud and might be disturbed; so he decided to call 911 on his cell phone.*fn19 When Mr. Tschernjawski was talking to the 911 operator, he described the volume of Plaintiff' voice, held the phone toward the church for a few seconds, then put it back to his ear; he remembers the 911 operator saying, "Yeah, I could hear him," or something similar.*fn20

Three police officers from the Town of DeWitt Police Department (the "Police Department") arrived in the church parking lot approximately 5 to 20 minutes after Plaintiff began preaching.*fn21 Two of the three officers were Officers Brenton White and Stacey Wickes.*fn22 While Plaintiff does not identify Officer Senus as the third officer,*fn23 the remainder of the record evidence indicates that Officer Senus was the third officer.*fn24

When Officer White first approached Plaintiff, Plaintiff stopped preaching and reacted politely.*fn25 One of the officers asked him (among other things) what Plaintiff was doing, to which Plaintiff responded (among other things) that he was doing what John the Baptist would have done, and that he felt the Catholic Church had given him permission to preach on Sundays.*fn26

Plaintiff also described his feelings about the immodest woman in the church and stated as follows (among other things):

If I don't take a stand--. . . I saw this . . . very immodest woman. . . . Her bra straps were showing. . . . If I don't take a stand, Peter--. . . Jesus said to Peter, 'Upon this rock, I found this church and the gates of hell shall not prevail against it.' So . . . if I don't take a stand, you know, against the sin and the church, then the gates of hell shall prevail against the church. . . . I'm taking a stand and I'm preaching to repentance.*fn27

One of the officers said, "Well, you're yelling. You're disturbing the neighbors."*fn28 One of the officers suggested, "Why don't you go in and talk to the parishioners in the church?"*fn29 Plaintiff responded, "Well, I don't think they want me ...


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