Case of the Day – Tuesday, August 9, 2022

I DON’T REALLY LIKE YOU

How many of us, while standing in line at the DMV or quaking with fear in front of an IRS auditor, worry about what might happen to us if we somehow offend one of these officious little paper-pushers?

Need a building permit? Kiss my ring, peasant! Don’t like your property valuation? Let’s see you do something about it! Want the city to do something about a dangerous tree overhanging the street? What’s it worth to you?

Is there anyone who hasn’t wanted to unload on some governmental employee whose only purpose in life seems to be stealing the oxygen needed by people who actually create value? We read about it all the time – IRS workers sitting on applications filed by people they don’t like. Building inspectors who demand some grease for their palms in order to get anything done. Small-town cops riding someone they don’t like. Presidents demanding vigorish for ordering the sale of a foreign-owned business to a U.S. company. But what can you do about it?

John Mangino thought he knew. He bought some rental units in Patchogue, New York, and rounded up tenants to live there. He bought his local permit to be a landlord, too. But when it was time to renew two years later, John decided he shouldn’t have to buy a piece of paper from the local government in order to manage his own property.

The City issued misdemeanor summonses to Mangino to force him to give them his money. He responded with a blunderbuss lawsuit challenging everything he could think of related to the rental permit program. The Village raised the stakes, telling him in so many words that it would make his life as a landlord a regulatory hell if he didn’t cave on the permit.

Finally, the Village made good on the threat. When one of Mangino’s tenants complained to the Village that her electrical outlets were sparking, the inspectors headed to the apartment building to inspect (which is what inspectors do). Mangino wouldn’t let them in without a warrant. The inspectors called the fire department, which stormed the place – sirens blaring – to look for the electrical short. They didn’t find any sparks, but the smoke-eaters found a passel of housing violations that – along with a cascade of criminal charges for not buying the rental permit – landed on Mangino’s head.

Mangino sued the Village under a Federal law – 42 U.S.C. § 1983 – that lets a person sue state and local officials for violating one’s constitutional rights under color of state law (that is, when a local official misuses the law to give someone the shaft). Mangino claimed that Village inspectors tried to shut him up in violation of the First Amendment, and engaged in abuse of process, by misusing the housing code to retaliate against him because they just didn’t like him.

The District Court threw out the case, holding that because the summonses for not buying a rental permit were based on probable cause – that is, the charges were righteous because he really did break the law – the fact that they may have been intended to shut him up didn’t matter.

As far as the abuse of process claim, the law was not clear whether probable cause would likewise defeat such a claim. In other words, it could be that if there was reason to believe he had broken the law, there could not be an abuse of process. Or maybe there could be. But because the law was unsettled, the officials were entitled to immunity from prosecution. Only if the law is clearly established and an official breaks it anyway will the government employees be liable to us common folk. It’s called qualified immunity, and it has a pretty bad reputation these days… one that is richly deserved.

Sadly, the rule is to smile at all those miserable little twits, grit your teeth, and show fealty. The alternative is too expensive and uncertain to contemplate.

Mangino v. Village of Patchogue, 808 F.3d 951 (U.S. Court of Appeals for the 2nd Circuit, 2015). About 20 years ago, John Mangino and his wife bought an apartment building in Patchogue, New York. When they got the place, they applied for a two-year rental permit and began renting apartments to tenants. When his permit expired in, the Manginos did not bother to renew it.

In January 2005, James Nudo, the Patchogue Housing Inspector, issued criminal summonses to the Manginos for continuing to rent out apartments without a rental permit. Mangino challenged in court these summonses and their manner of service, as well as the validity of the Village’s rental-permit law.

Mangino said that, in response to his lawsuit, the Village prosecutor threatened him that if he did not settle his litigation against the Village or accept a plea bargain on the criminal charges, he would be “hit with a barrage of summonses.”

A few months later, one of Mangino’s tenants asked the Village Housing Department to check the power in her apartment. Nudo answered Gucciardo’s call, and later reported Gucciardo had told him she feared that the conditions in her apartment, which included electrical problems, would result in a fire. Gucciardo called again a few days later to complain that the outlets in her apartment were sparking. A Village inspector went over to the apartments immediately, but Mangino refused to let him in without a warrant. The inspector told Mangino that he’d call the fire department if he wasn’t allowed in. Mangino still refused, so the inspector called in an “all encompassing general alarm.”

When the Village firemen arrived, they inspected the building, including Gucciardo’s apartment and the basement. They did not find any sparking or arcing outlets in Gucciardo’s apartment, but they did notice two fire protection code violations. The firefighters called in the inspector, who was waiting outside. He cited Gucciardo for the conditions and required him to get them fixed within 90 days.

A few days later, inspectors returned to inspect Gucciardo’s apartment with her consent. On the same day, they issued 18 separate summonses to Mangino for a variety of alleged violations of the Village Code. A few weeks later, Mangino was served with additional summonses dated August 5, 8, 9, 11, 12, 13, 14, 15, and 16, for failure to renew his rental permit on those dates. 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.

Mangino sued Village officials under 42 U.S.C. § 1983 for violating his First and Fourth Amendment rights. Mangino’s sole First Amendment claim was for retaliation and his Fourth Amendment claims included abuse of process and warrantless entry. The District Court dismissed Mangino’s retaliation claim because he hadn’t shown that the Village’s allegedly retaliatory conduct chilled the exercise of his First Amendment rights. The District Court dismissed Mangino’s Fourth Amendment abuse-of-process claim on the ground that Village officials enjoyed qualified immunity against such claims. Mangino’s warrantless entry claim went to trial, where the jury found against him.

Mangino appealed.

Held: Mangino loses.

The Court of Appeals held that the District Court was wrong to dismiss the First Amendment retaliation claim because Mangino hadn’t proved that his speech was “chilled,” that is, that the retaliation caused him to curtail his speech. Rather, the Court of Appeals said Mangino had standing to sue if he could show either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm.

However, the Court said, “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. Here, there was probable cause for each of the criminal summonses issued to Mangino, and Mangino admitted as much. Because there was probable cause, the District Court was right to dismiss Mangino’s First Amendment retaliation claim insofar as it is premised on the summonses.

But Mangino’s First Amendment retaliation claim was also premised on the investigator’s issuance of the non-criminal fire protection code violation tickets. Because those were civil matters, probable cause cannot defeat Mangino’s First Amendment claim. But the fact that the tickets were justified – and that the regulatory action, even if unjustified, was not significantly more serious than other actions the Village had the discretion to take.

The Court of Appeals held that Inspector Nudo was entitled to qualified immunity on the abuse of process claim. A governmental official is entitled to qualified immunity when there is no clearly established right that he or she violated by the conduct at issue. The Court of Appeals held that here, it was not clearly established that probable cause was not a complete defense to a claim of abuse of process. Since the Village’s citation of Mangino had occurred, case law had suggested that abuse of process is “misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish.” In other words, an improper motive for doing something that is otherwise proper may be enough to establish abuse of process.

The Court of Appeals did not decide which standard was right. Instead, it held that the precise definition was not established at the time the Village cited Mangino, and where the state of the law is not clearly established, Mr. Nudo and the other Patchogue officials were entitled to immunity. The Court said, “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 …”

– Tom Root