JOANNE SMITH, DONALD SMITH, EDWARD LILLY, Plaintiffs-Appellants,
BEN CAMPBELL, NEW YORK STATE TROOPER, Defendant-Appellant, NEW YORK STATE POLICE, DIVISION OF STATE POLICE, Defendant
Argued March 5, 2015
[Copyrighted Material Omitted]
At issue in this case is whether plaintiff Joanne Smith's First Amendment claim for retaliatory prosecution is time barred and whether plaintiff Edward Lilly's claim for unlawful seizure was properly dismissed by the district court. Because plaintiff Smith's claim is time barred, and because the district court improperly dismissed plaintiff Lilly's claim for failing to plead the claim as arising under 42 U.S.C. § 1983, the judgment of the United States District Court for the Western District of New York (Arcara, J.) is hereby AFFIRMED in part, and VACATED in part, and the case is REMANDED to the district court.
FOR APPELLANTS: RICHARD H. WYSSLING, Law Office of Richard Wyssling, Buffalo, New York.
FOR APPELLEE: BEVERLEY S. BRAUN, and Mitchell J. Banas, Jr., Jaeckle Fleischmann & Mugel LLP, Buffalo, New York.
Before: GUIDO CALABRESI, PETER W. HALL, Circuit Judges, and JED S. RAKOFF, District Judge.
Hall, Circuit Judge.
Before us on appeal is an amended complaint alleging various acts of intimidation and harassment aimed at Joanne Smith and Edward Lilly by New York State Trooper Ben Campbell. We AFFIRM tat part of the district court's order dismissing Smith's claim for retaliatory prosecution, Lilly's claim of a violation of his First Amendment right to peaceable assembly, and both plaintiffs' claims for intentional infliction of emotional distress. We VACATE and REMAND, however, the dismissal of plaintiff Lilly's unlawful seizure claim.
Smith alleges in her amended complaint that Campbell began harassing her on November 22, 2007 when he tailgated her in an off-duty vehicle, spooking her, and causing her to run a yellow light. Campbell continued to follow Smith until she pulled into the private driveway of a residence from which she was picking up her adult son, Tom Smith (" Tom" ). Campbell parked behind Smith's car. He and an off-duty local police officer who had been riding with him then approached the vehicle on opposite sides. Campbell, now standing outside the driver's-side window, identified himself as a New York State Trooper before he and the local officer began to question Smith about her driving, accusing her of running a red light and failing to legally yield at a stop-sign.
At Campbell's direction, Tom, who had emerged from the house, approached the vehicle and saw that his mother was visibly shaken. Tom and Campbell exchanged heated words, during which Campbell indicated that Smith would receive an additional ticket because Tom was causing trouble. Tom then took out his cell phone and stated that he would call 911 and speak to Campbell's supervisor. Campbell and the local officer immediately left without issuing Smith any tickets at that time.
On November 26, 2007, Smith and her husband Donald Smith visited the New York State Police Barracks where Campbell was stationed and complained about Campbell's conduct. Four hours later, Campbell appeared at Smith's home and delivered to her three traffic tickets related to the November 22 incident.
In December 2007 and January 2008, Smith wrote additional letters to the New York State Police complaining of Campbell's conduct. On January 23, 2008, the state police responded by letter, dismissing her accusations against Campbell. On February 26, 2008, officers appeared at Smith's home suggesting in an intimidating manner that she plead guilty to all ...