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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VILLAGE OF LIBERTY;
STEVEN D' AGATA, sued in his individual capacity;
MELVIN GORR, sued in his individual capacity; and
ROBERT ZANGLA, sued in his individual capacity,
No. 13 Civ. 4067
Judge Cathy Seibel
This civil rights action seeks to vindicate the right of individuals to criticize their
government free of the threat of arrest and prosecution. In August 2012, plaintiff Willian Barboza
paid by mail a traffic ticket that he received while driving through the Village of Liberty in
Sullivan County, New York. Plaintiff expressed his frustration by crossing out "Liberty" from the
payment form and replacing it with "TYRANNY," and writing "FUCK YOUR SHITTY TOWN
BITCHES." For writing the latter set of words, plaintiff was ordered to appear in court, arrested
and handcuffed, and prosecuted under New York's Aggravated Harassment statute, Penal Law§
240.30(1)(a). In dismissing the charge seven months later, the Town court hearing the case
observed that "no citation is necessary for this Court to determine that the language under the
circumstances here, offensive as it is, is protected" under the First Amendment.
Plaintiff brings this action under the First and Fourth Amendments to the United
States Constitution, seeking a finding that he was falsely arrested and retaliated against for
engaging in protected speech. He also seeks damages for pain and suffering and humiliation. In
addition, plaintiff seeks a judicial declaration in the course of a liability finding that Penal Law §
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240.30(1)(a) is unconstitutional on its face insofar as it reaches "annoying" or "alarming" speech.
This case illustrates how the continued existence of Penal Law§ 240.30(1)(a) in New York
presents the unacceptable risk of prosecution for the mere exercise of constitutionally protected
Plaintiff Willian Barboza is a 23 year-old man who resides in Fairfield County,
Defendant Steven D' Agata is a detective employed by the Village of Liberty in
Sullivan County, New York. As a state actor, he may be sued under 42 U.S.C. § 1983.
Defendant Melvin Gorr is a police officer employed by the Village of Liberty in
Sullivan County, New York. As a state actor, he may be sued under 42 U.S.C. § 1983.
Defendant Robert Zangla is an assistant district attorney employed by the Sullivan
County District Attorney's Office in Sullivan County, New York. As a state actor, he may be sued
under 42 U.S.C. § 1983.
Defendant Village of Liberty is a municipality organized pursuant to the laws of the
State of New York. It may sue and be sued under 42 U.S.C. § 1983.
JURISDICTION & VENUE
As plaintiff brings this action to enforce the First and Fourth Amendments to the
United States Constitution, this Court has subject matter jurisdiction pursuant to 28 U.S.C. §§
1331and1343 (3) & (4). This Court also has subject matter jurisdiction pursuant to 42 U.S.C. §§
1983 and 1988.
As the events giving rise to this case arose in Sullivan County, New York, this case
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is properly venued in the Southern District of New York.
On May 4, 2012, plaintiff was driving his vehicle on State Route 17 through the
Town of Liberty. He was pulled over for speeding.
In early June 2012, plaintiff pled guilty by mail to the speeding ticket.
In August 2012, the Town of Liberty Court sent plaintiff a letter that accepted his
guilty plea and provided information for payment of the fine. The letter also contained a payment
form for plaintiff to complete in connection with his guilty plea.
On or about August 20, 2012, plaintiff filled out the payment form that
accompanied the Town Court's letter. Expressing frustration at the Village of Liberty, in sending
in the paperwork in connection with his guilty plea, plaintiff wrote on the form, "FUCK YOUR
SHITTY TOWN BITCHES." He also crossed out the Town's name, "Liberty" from the form, and
wrote "TYRANNY" instead. Plaintiff then mailed in the form.
Plaintiffs written comments on the form that he sent to the Clerk of Court of the
Town of Liberty constituted protected expression under the First Amendment to the United States
On September 26, 2012, Town of Liberty Justice Brian P. Rourke advised plaintiff
in writing that his payment by mail was rejected and that he was ordered to appear in Town Court
on October 18, 2012. Justice Rourke copied defendant Assistant District Attorney Robert Zangla
of the Sullivan County District Attorney's Office on the letter.
Upon receiving the letter from Justice Rourke, plaintiff tried to reach the Town
Court and defendant Zangla to find out if any issues with the payment could be resolved without an
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appearance so that he would not have to drive two hours from his home in Connecticut to the Town
of Liberty. On the day before the court appearance, Zangla called plaintiff back and left a
voicemail saying that he would have to appear in court the next day.
As directed, plaintiff appeared in the Town of Liberty Court in the early afternoon
on October 18, 2012, driving approximately two hours from his home in Connecticut in order to
make the appearance. In open court, Justice Rourke held up plaintiffs payment letter and lectured
him about plaintiff's language. At this time, defendants Steven D' Agata and Melvin Gorr arrested
plaintiff for aggravated harassment and placed him in handcuffs inside the courtroom, in full view
of the approximately 30 to 40 individuals who had to appear in court that day.
Defendants D' Agata and Gorr next escorted plaintiff from the courtroom and
brought him to the Village of Liberty police station, where he was booked and fingerprinted and
handcuffed to a bench.
After processing the plaintiff, defendant Gorr took plaintiff back to Town of
Liberty Court where Justice Rourke told plaintiff that he was recusing himself from the case since
he was party to it. Defendant Gorr then drove a handcuffed plaintiff to the Town of Fallsburg
Court for arraignment. While driving plaintiff to the Town of Fallsburg Court, defendant Gorr told
plaintiff that he did not engage in free speech because his written comment on the payment form
had offended employees in the clerk's office.
At arraignment in the Town of Fallsburg Court where plaintiff was unrepresented
the Town Justice imposed $200 bail.
Defendant Gorr next transported plaintiff to the Sullivan County Jail, where he paid
bail and was finally released at around 7:00 p.m. Plaintiff then took a taxi to the Town of Liberty
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where he was able to retrieve his car and drive home to Connecticut.
Defendant Zangla knew about the language that plaintiff had written on the
payment form since at least September 26, 2012, when he was copied on the letter from Justice
Rourke summoning plaintiff to the Town Court on October 18, 2012. Zangla, however, failed to
take any steps to secure an arrest warrant, conduct a factual investigation, or conduct an
independent interview of individuals in the clerk's office who received the payment form.
23. When Zangla saw that plaintiff appeared in Justice Rourke's courtroom on October
18, he advised Detective D' Agata on the factual and legal basis for drafting and filing an
accusatory instrument and directed plaintiffs arrest under the Aggravated Harassment law.
As Defendant Zangla stepped into a role usually played by the police officer, or
even a complaining witness, by advising on the factual and legal basis of the an-est and directing
the arrest prior to the initiation of judicial process, prosecutmial immunity cannot attach.
Defendant D' Agata signed the accusatory instrument that initiated plaintiff's arrest
and prosecution. This defendant charged plaintiff with violating Penal Law § 240.30(l)(a), a
misdemeanor. That provision reads, "A person is guilty of aggravated harassment in the second
degree when, with intent to harass, annoy, threaten or alarm another person, he or she: . . .
communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or
by transmitting or delivering any other form of written communication, in a manner likely to cause
annoyance or alarm."
In the accusatory instrument charging plaintiff, defendant D' Agata wrote that "The
aforementioned defendant did commit the offense of aggravated harassment in the second degree
when, with intent to harass, annoy, threaten or alarm another person, he communicated with a
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person by mail in a manner likely to cause annoyance and alarm. To Wit: The aforementioned
defendant, Willia[ n] M. Barboza, on the above date and location did knowingly and intentionally
communicate with Town of Liberty Court employees by mail by sending a traffic ticket payment
correspondence with the words 'FUCK YOUR SHITTY TOWN BITCHES' written across the
Defendant Zangla approved the accusatory instrument drafted by defendant
Under clearly established law, plaintiff's speech could not be prosecuted under the
offense of aggravated harassment in the second degree. The New York Court of Appeals has held
that Penal Law§ 240.30(1)(a) cannot, consistent with the First Amendment, be applied to speech
that is "crude and offensive" but that does not "fall within any of the proscribable classes of speech
State and federal courts in New York have also commented on the facial
unconstitutionality of Penal Law§ 240.30(1)(a). In 1997, one judge of this Court found the
provision to be "utterly repugnant to the First Amendment of the United States Constitution and
also unconstitutional for vagueness." In 2003, another judge of the Court warned that "state and
local police officers and prosecutors would be well-advised .. . to cease arrests and prosecutions
under this section."
As plaintiff was merely expressing his frustration toward the Village of Liberty and
engaging in protected speech under the First Amendment, his speech could not be punished under
§ 240.30(1)(a). Plaintiff's arrest and prosecution therefore lacked probable cause.
The Village of Liberty does not train its police officers in how courts have
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interpreted the Aggravated Harassment Law, including how the New York State Court of Appeals
has held that it cannot be applied to "crude and offensive" speech. While law enforcement officers
employed by the Village review the text of the Aggravated Harassment Law in drafting accusatory
instruments and making the determination to charge and arrest defendants, the Village does not
train its officers or provide them with materials about the constitutional limitations of the law.
As a consequence, when Defendant D'Agata charged and arrested plaintiff under
the Aggravated Harassment law, since he received no training in legal developments surrounding
the Aggravated Harassment law-the reach of which has been significantly narrowed by court
rulings including by the New York State Court of Appeals-he was not properly trained to avoid
applying the law against persons who engage in offensive and even vulgar speech that neither
constitutes a "true threat" of violence or "fighting words."
As law enforcement officers employed by the Village of Liberty have charged
persons with violating the Aggravated Harassment law, the Village is required to properly train
them in the constitutional limitations of that law in order to prevent their employees from effecting
arrests that violate the United States Constitution.
To the extent the Aggravated Harassment statute is vague or requires clarification
in order for law enforcement officers to comply with the United States Constitution in making
arrests, proper training on the scope of that law would ensure that arrests do not violate the First
Amendment and other constitutional protections.
As a consequence of the Village's failure to properly train its law enforcement
officers, they have inadequate knowledge of the criminal statutes relevant to their ordinary duties.
Confirming that defendants lacked any basis to arrest and detain plaintiff, by
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decision dated March 22, 2013, Town of Fallsburg Justice Ivan Kalter dismissed the charge
against plaintiff in its entirety, stating in part: "Without doubt the Defendant's comment was
crude, vulgar, inappropriate, and clearly intended to 'annoy.' Nevertheless, it is not a threat, it
does not contain 'fighting words', or create an 'imminent danger. ' While it might seem to fall
within the four corners of the aforesaid statute, it is nevertheless subservient to the First
Amendment of the United States Constitution which provides for and allows a broad range of ' free
speech' in the nature of opinion and public comment. . .. [N]o citation is necessary for this Court
to determine that the language under the circumstances here, offensive as it is, is protected."
Justice Kalter's ruling dismissed the charge against plaintiff on the merits and in its
As a consequence of plaintiff's unconstitutional arrest, defendants restricted his
liberty. Upon his arrest, plaintiff was transported to the police station in handcuffs and then taken
to the county jail. That day, plaintiff was detained by the police for approximately four to five
hours, a substantial portion of which was post-arraignment.
Plaintiff's arrest also resulted in restrictions on his movement. When plaintiff paid
bail on October 18, 2012, he signed a form that stated, "I undertake that the above named
Defendant will appear in such action or proceeding whenever required and will at all times render
himself amenable to all orders and process of the Court. Additionally, I acknowledge and
understand that the cash bail posted herein will be forfeited if the Defendant does not comply with
any requirement or order of process to appear in court."
Between October 2012 and January 2013, plaintiff was required on several
occasions to appear in municipal court for routine court appearances, each time spending
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approximately two hours each way on the road from his home in Connecticut. On October 18,
2012, the arraigning justice at the Town of Fallsburg ordered plaintiff to appear in the Town of
Liberty Court on October 19. When plaintiff arrived at the Town of Liberty Court on October 19,
he discovered that court was not in session and that he had been erroneously directed to appear in
court that day.
Plaintiff also appeared in Town of Fallsburg Court for a routine court appearance
on January 20, 2013.
Plaintiffs false arrest caused him to suffer humiliation and pain and suffering.
CAUSES OF ACTION
Plaintiff incorporates the allegations in ~ii 1-42 as if fully restated herein.
In arresting plaintiff without probable cause, defendants D' Agata, Gorr, and Zangla
violated the Fourth and Fourteenth Amendments to the United States Constitution.
In enforcing Penal Law§ 240.30(1)(a), which is unconstitutional on its face insofar
as it reaches "annoying" or "alarming" speech and as applied to plaintiff's constitutionally
protected speech, defendants D' Agata, Gorr, and Zangla violated the First and Fourteenth
Amendments to the United States Constitution.
The Village of Liberty is liable for plaintiffs unlawful arrest and detention under
the First, Fourth, and Fourteenth Amendments to the United States Constitution.
PRAYER FOR RELIEF
WHEREFORE, plaintiff prays that this Honorable Court:
a. accept jurisdiction over this case;
b. certify to the attorney general of the State of New York under 28 U.S.C. § 2403(b)
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that the case presents the constitutionality of section 240.30(1)(a) of the New York State Penal
c. declare that defendants violated plaintiffs constitutional rights by enforcing Penal
Law§ 240.30(1)(a), which is unconstitutional on its face insofar as it reaches "annoying" or
"alarming" speech and as applied to plaintiffs constitutionally protected speech;
d. award to plaintiff compensatory damages resulting from defendants' unlawful
e. award to plaintiff attorneys' fees and costs expended in prosecuting this action;
f. enter judgment in plaintiffs favor; and
g. enter such relief that this Court deems just and proper.
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Dated: j:e b . Z 2014
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